ON MOTION FOR REHEARING. In its motion for rehearing the defendant City argues that what was said by the Supreme Court in State ex rel. May Department Stores Co. v. Haid et al., 327 Mo. 567, 585, 38 S.W.2d 44, referred to in our original opinion herein, with respect to the date of the promulgation of an opinion by that court in a preceding case was obiter dictum and that while it may be persuasive it is not decisive. Our original opinion herein shows that we have not treated it as decisive in this case. That phase of our opinion was presented as an additional reason for the conclusion reached. The basis of our decision is the failure of the defendant City to give the trial court an opportunity to pass upon the question of procedural error which said defendant has raised in this court for the first time in the case.
So far as we are aware, our Supreme Court has never passed upon the question as to whether a decision of that court whichchanges an established rule of procedure becomes operative and controlling, as to cases other than the one in which such change is declared, on the date on which it is first handed down or on the date on which the motion for rehearing is overruled where such a motion is filed. It is true, a motion for rehearing does not vacate the Supreme Court's judgment or affect its vitality and efficacy. Such judgment is conclusive upon the parties in the case in which it is rendered from the instant it is first handed down and until it is set aside by that court itself. [Ex parte Craig, 130 Mo. 590.] However, we do not believe that a trial court can be properly convicted of error in another case where it follows an established rule of procedure unless the decision of the Supreme Court changing such established rule of procedure has been promulgated by that court at the time of the action of the trial court.
In the peculiar situation with respect to the date of the handing down of the decision in the Hoelzel case and the date of the overruling of the motion for rehearing therein, as well as the date of the second trial of the case at bar, neither the trial court nor any of the parties herein knew, or could have known at the time of the trial herein, what the final decision of the Supreme Court with respect to changing the rule of procedure would be because that court itself had not then published or promulgated the Hoelzel opinion. Certainly it cannot be said that the Supreme Court's opinion in the Hoelzel case was published or promulgated as the law of this State to govern other cases until that court had acted upon the motion for rehearing which had been filed therein.
The motion for rehearing herein is overruled. Becker, J., concurs; Hostetter, P.J., not sitting. *Page 114