author:
BROWN, J.
     GRAVES, J. .WOODSON, J.

text:
    THE STATE ex rel. UNITED RAILWAYS COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    April 2, 1914.
    1. CERTIORARI: Issued by Judge in Vacation of Court. A preliminary writ of certiorari will not be quashed simply because it was issued by a judge of the Supreme Court in vacation, and not by the court in term time.
    2. -: To Compel Court of Appeals to Obey Supreme Court Decisions: Jurisdiction. It is just as much the duty of the courts of appeals to follow the last previous ruling of the Supreme Court on questions of law and equity arising in. cases pending before them, as it is their duty to conform their proceedings to their jurisdictional limitations. No part of the Constitution can bé ignored or disregarded, and it says that “the last previous rulings of the Supreme Court on any question of law and equity shall, in all cases, be controlling authority in said courts of appeals;” and it further says that the Supreme Court shall have a superintending control over the courts of appeals by mandamus, prohibition and certioraA'i, and it fixes no limit on the right of the Supreme Court to superintend, and none should be written into it by the courts; and under that superintending power the Supreme Court has jurisdiction, by its writ of certiorari, to compel a court of appeals to transfer a ease to it in which such court has rendered an opinion in which it refused to follow a previous decision of the Supreme Court. [Following State ex rel. Curtis v. Broaddus, 238 Mo. 189; State ex rel. Evans v. Broaddus, 245 Mo. 123; and State ex rel. Iba v. Ellison, 256 Mo. 644; and overruling State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Bland, 168 Mo. 1; State ex -rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 216 Mo. 336; Railroad v. Smith, 154 Mo. 300.]
    3. -: -: Harmony in Opinions. The provision in the constitutional amendment of 1884 declaring that “the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals,” was established to bring about uniformity in the rules of law and equity in all the appellate courts of the State. But that provision does not mean that the decisions of the courts of appeals shall conform to the rules of the Supreme Court to the point of absolute harmony, in the very language used and the expressions employed, but it does mean that harmony should exist, in matters of real substance.

      i. -: -,: Ascertainment of Evidence in Case Decided. Where the decision of a court of appeals is brought in review by a writ of oerliorwi, on the ground that said court has refused to follow the last previous ruling of the Supreme Court, what the evidence was in the case decided by the court of appeals will be ascertained from what the judges thereof say in their written opinion it was, and not from an examination of the record and abstract in that case.
    5. -: -: No Substantial Departure: Loss of Time: No Evidence of Value. Nelson prosecuted a suit against a railway company for damages for personal injuries. There was evidence that he was a common laborer, that he was in bed three weeks, that he was unable to get out of the house for six weeks and that when he later secured employment he had to surrender it because of his inability, because of said injuries, to render the service, and relator made no objection to the testimony establishing those facts; but there was no testimony as to what wages, if any, he had been receiving prior to his injuries, or what his earning capacity had been. The court instructed the jury that, in estimating his damages, they should consider, among other things, “his loss of time.” Held, that he was entitled at least to nominal damages for loss of time, and as defendant neglected to ask the trial court to confine his recovery for loss of time to nominal damages it could not complain of the instruction, and a decision of the Court of Appeals holding there was no reversible error in the instruction under the circumstances, was not so out o'f harmony with the last previous ruling of the Supreme Court (or its later rulings) as to authorize the Supreme Court to interfere with said decision by its writ of eertiomri.

      Held, by GRAVES, J., dissenting, with whom FARIS, X, concurs, that the ruling of the Court of Appeals is in conflict with decisions suggested by relator and other decisions, and its record therefore should be quashed.
    Certiorari.
    Writ quashed-.

      Boyle <§> Priest, R. E. Blodgett and T. E. Francis for relator.
    (1) A judge of tliis court has power to issue a writ of certiorari in vacation. State ex rel. v. Dearing, 184 Mo. 647; State ex rel. v. RomBauer, 105 Mo. 103; State ex rel. v. Rombauer, 104 Mo. 619. (2) Even though the judge issuing the writ of certiorari had no power to issue it, nevertheless the record having been filed in this court, pursuant to the writ, this, court may ratify and adopt the writ and take such action with respect to the record filed as the rules of law and the demands of justice require. In re Thirty-fourth St., 81 Pa. St. 27. (3) Certiorari lies where the lower court has jurisdiction but exercises it in an unwarranted manner. State ex rel. v. Broaddus, 245 Mo. 123; State ex rel. v. Smith, 176 Mo. 90. It also lies to correct an error appearing on the face of the record that cannot be reached by appeal or writ of error, although \the lower court had jurisdiction to decide the matter complained of. State ex rel. v. Mosman, 231 Mo. 482. (4) The Constitution enjoins, upon the Courts of Ap.peals the duty of following the “last previous ruling of the Supreme Court.” Section 6 of Amendment of 1884 to Article 6 of Constitution, (a) This constitutional mandate is a limitation upon the power of the Courts of Appeals, and hence when one of these courts refuses to follow the “last previous ruling of the Supreme Court,” it is acting beyond its jurisdiction, or, to express it in another way, is exercising in an unwarranted manner the general jurisdiction it possesses to decide the case. State ex rel. v. Broaddus, 238 Mo. 189. (b) But even though the failure of a Court of Appeals to observe this Constitutional mandate would not, technically speaking, constitute action beyond or outside of its jurisdiction, still the Supreme Court would have power, by means of certiorari, to compel such observance, since the Constitution makes it the duty of the Supreme Court to exercise “superintending control” over the Courts of Appeals, by certiorari and other remedies. Sec. 3, Art. 6, Constitution; Sec. 8, Amendment of 1884 to Art. 6 of Constitution. These writs thus authorized are sui generis and are not to be measured or circumscribed by tbe practice that obtained at common law with respect to such writs, but,, in the nature of the thing, should be sufficiently elastic and comprehensive to enable the Supreme Court to efficaciously discharge the “superintending” function enjoined upon it. (5) The Constitution enjoins upon the Supreme Court the duty of exercising a superintending control over the Courts of Appeals by means of certiorari and other extraordinary remedies. Sec. 3, Art. 6, Constitution; Sec. 8, Amendment of 1884. This-constitutional mandate requires the Supreme Court to keep the courts of appeals within the limitations and restrictions imposed upon them by the Constitution, and, so far as this duty is concerned, all such limitations and restrictions — whether with respect to territory, or to amount, subject-matter or parties involved, or to the requirement of following the “last previous ruling of the Supreme Court” — are of equal dignity. State ex rel. v. Broaddus, 238 Mo. 189 ; State ex rel. v. Broaddus, 245 Mo. 123'. (6) The Court of Appeals, in the decision appearing in the record filed in this court, failed to follow the ‘ ‘ last previous ruling of the Supreme Court,” in that — (a) The Court of Appeals decided that the instruction on the measure of damages in this action for personal injuries, permitting an award for loss of earnings, was not erroneous, notwithstanding there was no proof that plaintiff had lost any earnings and no proof as to what wages he had received or that he had ever received any wages, prior to his injury; whereas, (b) the “last previous ruling of the Supreme Court” was, that an instruction, in such a case, permitting an award for loss of earnings, was erroneous, unless the evidence definitely showed what plaintiff’s earnings had been, prior to his injury. Davidson v. Transit Co., 211 Mo. 344; Slaughter v. Railroad, 116 Mo. 275; Duke v. Railroad, 99 Mo. 347.

      Glendy B. Arnold for respondents; Johnson, Rutledge <& Lashly of counsel.
    (1) The jurisdiction to issue writs of certiorari is vested in the Supreme Court and not the judges of' that court. Missouri Constitution, art. 6, sec. 3; Amend. 1884, sec. 8. Where the law authorizes or contemplates the doing of a judicial act, it is understood to mean that the court in term time may do it and the judges in vacation may not, without express authority, act therein. State ex rel. v. Woodson, 161 Mo. 444; Newman v. Hammond, 46 Ind. 119; Reyburn v. Bassett, McCahon (Kan.) 86; Fisk v. Thorp-, 51 Neb. 1; State v. Atherton, 19 Nev. 332. (2) The courts of appeals are-courts of last resort, and their judgments, in causes within their jurisdiction, and which are not in excess of that jurisdiction, are final and cannot be reviewed nor controlled by the Supreme Court by any legal process. Constitution, art. 6, secs. 12,19, 27; Amendment 1884, secs. 3, 5 and 6. (3) The Supreme Court is-given exclusive jurisdiction of all cases which may be brought to that court by writs of error and appeals; and the courts of appeals are likewise given exclusive jurisdiction of all cases which may be brought to those-courts by writs of error and appeals. Constitution, art. 6, secs. 12 and 27; Amendment 1884, sec. 5-. (4) Section 6 of the Amendment of 1884, which provides that “the last previous rulings of the Supreme Court on any question of law or equity, shall in all cases, be controlling authority in said Courts of Appeals” does not purport to define the jurisdiction of said courts of appeals. That jurisdiction is expressly defined by-other sections of the Constitution. (5) The Supréme Court has plenary power, by prohibition, mandamus and certiorari, to keep the courts of appeals within the prescribed limits of their jurisdiction. Constitution,, art. 6, sec. 3; Amendment 1884, sec. 8; State ex rel. v.. Broaddus, 245 Mo. 123; State ex rel. v. Smith, 172 Mo. 446 ; State ex rel. v. Rombauer, 105' Mo. 103. (6) The courts of appeals are bound to decide every question affecting or involving tbeir jurisdiction in accord with tbe ruling of tbe Supreme Court, whether those rulings are expressed or unexpressed, and if those courts fail in that duty the error may be corrected, in the Supreme Court, by an appropriate remedy. See authorities under point 5. (7) Certiorari from the Supreme Court does not lie to review the rulings of the courts of appeals in causes within their jurisdiction, which do not affect or involve that jurisdiction on the ground that said courts refuse to follow “the last previous rulings of the Supreme Court” in other eases. State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Smith, 101 Mo. 174; Railroad v. Smith, 154 Mo. 300; State ex rel. v. Broaddus, 216 Mo. 336; State ex rel. v. Broaddus, 245 Mo. 136; State ex rel. v. Broaddus, 238 Mo. 232; State ex rel. v. Broaddus, 207 Mo. 107; Curtis v. Sexton, 252 Mo. 221; State ex rel. v. Rombauer, 125 Mo. 632. (8) The Supreme Court has no jurisdiction, by appeal or error, to review the' decisions of the courts of appeals on any question of law or equity. Constitution, art. 6, Amend. 1884. (9) The sole office of certiorari from the Supreme Court to the courts of appeals is to control the exercise of jurisdiction by the courts of appeals. Railroad v. State B. of E., 64 Mo. 308; State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Bland, 168 Mo. 1; State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 245 Mo. 123; Ward v. B. of E. of Gentry Co., 135 Mo. 3191; State ex rel. v. Smith, 176 Mo. 99; State ex rel. v. Reynolds, 190 Mo. 588; State ex rel. v. Broaddus, 216 Mo. 344; State ex rel. v. Wooten, 139 Mo. App. 231; State ex rel. v. Baker, 170 Mo. 390'; State ex rel. v. Smith, 173 Mo. 414; State ex rel. v. Broaddus, 238 Mo. 204. (10') Certiorari cannot be used as a substitute for an appeal or writ of error. State ex rel. v. Reynolds, 190 Mo. 589; State ex rel. v. Kansas City, 89 Mo. 34; State ex rel. v. Springer; 134 Mo. 212; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Wood-son, 161 Mo. 444; State ex rel. v. Bland, 168 Mo. 1. (11) Not one of the decisions of the Supreme Court which the relator charges that the court of appeals de-clined to follow contains a single word or line which, in the slightest degree, touched upon or affects the jurisdiction of the courts of appeals. Neither the jurisdiction of the Supreme Court, nor of the courts of appeals is either directly or indirectly presented, involved, discussed or decided in those cases. (12) A Court of Appeals which does not follow the last previous rulings of the Supreme Court on some non-jurisdictional point of law does not exceed its jurisdiction. Lampson v. Platt, 1 Iowa, 558; Monreal v. Bush, 46 Cal. 79; State ex rel. v. Broaddus, 216 Mo. 344. (13) “In any case where the court has jurisdiction of the subject-matter of the action and the parties are before it by the due service of proper process, the jurisdiction is never ousted by the erroneous exercise of the power which it confers, and the judgment in the case, though it may be marked by error which will cause its reversal by a higher court, is not for that reason void.” Fiene v. Kdrchoff, 176 Mo. 516; Ex parte Bigelow, 113 IT. S. 328. (14) Jurisdiction is the power to hear and to decide. 'A judgment of the court is the result of the exercise of jurisdiction. Where the court is given power to decide, and its decision is responsive to the issues presented, it ought never to be adjudged to have exceeded its jurisdiction in the erroneous decision of questions which do not affect its jurisdiction. Monreal v. Bush, 46 Cal. 79; Karby v. Superior Court, 162 Cal. 285. (15) If the failure of the courts of appeals to follow the last previous rulings of the Supreme Court on some non-jurisdictional point of law constitutes a ruling in excess of the jurisdiction of that court, then every decision of every point of law in every cause , now or hereafter before those courts may be reviewed by this court on writ of certiorari. (16) If the issuance of the writ of certiorari is sustained, in this proceeding, then a long line of well-considered decisions of this court,will be overruled, some of which are: State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Bland, 168 Mo. 1; State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 238 Mo. 189; State ex rel. v. Broaddus, 216 Mo. 336; Railroad v. Smith, 154 Mo. 300. (17) The relator contends that a certain ruling of the Court of Appeals in the Nelson case, hereafter to be pointed out, is in conflict with Davidson v. United Railways,. 211 Mo. 320; Slaughter v. Railroad, 116 Mo. 269; and D'uke v. Railroad, 99 Mo. 347, prior decisions of this court. No •other Supreme Court decisions were cited or relied upon by the relator in the Court of Appeals as being in conflict with the ruling of that court in the Nelson •case. There is really no conflict between the challenged ruling of. the Court of Appeals and the rulings of this court in the cases relied upon by relator,
   BROWN, J.

Certiorari to quash judgment of the St. Louis Court of Appeals.

This is an original action in this court to quash a .judgment entered by the St. Louis Court of Appeals affirming a judgment of the circuit court of St. Louis •city, in a case in which one Edward W. Nelson was respondent, and the United Railways Company (the relator herein) was appellant, for the alleged reason that •said Court of Appeals failed to follow the last previous ruling of this court, as required by section 6, article 6, Constitution of Missouri, as amended in the year 1884.

The particular issue upon which it is alleged that respondents, as such Court of Appeals, failed and refused to follow the last previous ruling of this court arose in this wise: The said Edward W. Nelson prosecuted an action in the circuit court of St. Louis City against the relator for personal injuries alleged to have been inflicted by or through the negligence of relator, in which action a judgment was entered in favor of ■said Edward W. Nelson for $4200'. In the suit so prosecuted by said Nelson there was evidence tending to prove that he was confined to his bed three weeks, :and that he lost time from his work as a common laborer on account of his. injuries,-but there was no evidence as to what wages, if any, he had been receiving before his injuries, nor what his work was reasonably worth. The circuit court gave an instruction to the jury authorizing it to find for said Nelson for the time he had lost by reason of his alleged injuries. On appeal, •error was assigned by relator on account of the aforesaid instructions. In refusing to reverse the judgment •so rendered in favor of said Nelson, the relator asserts that said Court of Appeals failed to follow the ruling of this court in the cases of Slaughter v. Railroad, 116 Mo. 269, 274; Davidson v. Transit Co., 211 Mo. 320, 344, and Duke v. Railroad, 99 Mo. 347.

The instruction given by the circuit court, and which relator contends should have worked a reversal of the judgment obtained by said Nelson, reads as follows:

“The court instructs you that, if you find for the plaintiff, you should, in estimating his damages, consider his physical condition before and since receiving rthe injuries for which he sues (as shown by the evidence) his loss of time if any, and his physicial and mental anguish, if any suffered by him on account of his injuries at the time of and since such injuries (as shown by the evidence) and such damages, if any, as you may, from the evidence, find reasonably certain he will suffer in the future by reason of his injuries, and you will assess his damages at such sum as will, in your judgment, under the evidence, reasonably compensate him for such injuries, not exceeding the sum of $10,000.”

(The italics are our own and are employed to the ■end of inviting attention to those words later in the opinion.)

The facts in said case of Nelson v. United Railways Co., and the reasons assigned by respondents for affirming the judgment of the circuit court in said cause, are set out in that part of their opinion which reads as follows:

“Plaintiff testified that he was in bed three weeks and four days and was unable to get out of the house until six weeks elapsed after his hurt. It appears, too, that he was unable to perform any bind of manual labor for a week thereafter. As above said, all of this evidence was received without objection on the part of defendant and, this being true, it was entirely proper for the court to submit the question arising thereon to the jury, though no claim was made in the. petition on that account. [See Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455; Loe v. Railroad Co., 57 Mo. App. 350.] The judgment is then not to be reversed for the reason a recovery was allowed as for loss of time in the past because not claimed in the petition, for it is clear that matter was waived by permitting the proof to be received without objection and is to be regarded as a mere immaterial variance under the statute. [Litton v. Railroad Co., 111 Mo. App. 140, 146.]
“In so far as the right to recover as for loss of earnings in the future is concerned, the petition expressly lays a claim for that and, of course, the evidence tends to prove it was properly received. By reference to the language of the instruction above set out, it will appear that it does not expressly direct the jury to consider plaintiff’s loss of time in the past but on the contrary authorizes a recovery alone for £his loss of time.’ See the words italicized in the instruction. But, of course, this authority to consider plaintiff’s loss of time as an element of damages is to be viewed as though the jury understood it to authorize a recovery for the time lost in the past as well as diminished earning power in the future. However this may be, the evidence of time lost as well as that tending to prove a diminished earning capacity was properly in, and the giving of the instruction as worded is not to he condemned’ for the mere failure to lay a claim in the petition for past loss of time.
“But it is argued though evidence was received as to the loss of time in the past and diminished earning power for the future, the court should not have submitted these elements of recovery to the jury for the reason no evidence Avas introduced tending to prove the value of plaintiff’s time. It is true nothing appears as to the amount plaintiff earned when employed and if the ease presented the feature of one following some particular calling touching the nature, character and compensation of which the jury were ’wholly unadvised, the argument would inhere with much force. It is not so, however, when it appears, as here, that the plaintiff’s calling is one of a character and kind which together with the usual compensation therefor is well known and understood by all fairly intelligent men in the community. In such cases, it is said the jurors in the box know something of the value of the time lost and the earning power diminished as well as the witnesses called to give testimony thereon. That plaintiff was employed at the time of his injury, the record reveals beyond question. Therefore, that his past loss of time was of value to him sufficiently appears. That his earning power was diminished for the future is not questioned, for the evidence amply reveals it, and then, too, it is said his injuries to the shoulder are permanent. While the amount of wages he received is not shown in the evidence, it appears that he was engaged in the capacity of a common laborer for a manufacturing company and had charge of hauling from the factory and loading on the cars ice cream cabinets for shipment. After his injury he engaged to work for a contractor in layr ing concrete, but was unable, because of his hurt, to perform the task assigned him and lost the place. It thus appearing that his occupation was that of common labor, almost any intelligent citizen, who employs common labor, is sufficiently familiar with the-value of the time of one so engaged to testify concerning it in court. This court has several times heretofore declared such to be true with respect to the competency of witnesses to speak on the question. [See Bogue v. Corwine, 80 Mo. App. 616, 620; Kelly v. Rowane, 33 Mo. App. 440.] The jurors as well as others, possess information touching this question and they know that the loss of time by and the diminished earning capacity of one engaged in common labor possesses some value for which a recovery should be allowed. Though it be that they are not informed as to the precise amount of the loss to be compensated and that a verdict therefor is not authorized without evidence tending to prove the value of the loss, it is certain that enough appears from the facts of employment, the injury and the loss of time as a consequence thereof to authorize a nominal recovery on that account. [See Mabrey v. Gravel Road Co., 92 Mo. App. 596; Jennings v. Appleman, 159 Mo. App. 12; Loe v. Railroad Co., 57 Mo. App. 350.] Therefore, the plaintiff’s instruction authorizing a recovery for ‘his loss of time’ is not to be condemned as without any warrant whatever in the evidence. It appears to-be well enough in its general scope, but, it may be defendant was entitled to have- the recovery on the score of loss of time and diminished earning capacity limited to that of nominal damages only. Though such be true, the judgment should not be reversed on account of plaintiff’s instruction, for it does not appear that defendant made any request whatever toward limiting the recovery on this account to nominal damages; [See Browning v. Ry. Co., 124 Mo. 55; Mabrey v. Gravel Road Co., 92 Mo. App. 596.]”

Respondents have filed herein their motion to-quash the preliminary writ issued in this cause on the following grounds: (1) That such writ was issued by a judge of this court in vacation, and not by the court in term time; and (2) that under the Constitution of this State this court is without power to review by certiorari and quash the judgment entered by respondents. Said motion was taken with the case.

OPINION.

I. On the first point presented in this motion respondents cite State ex rel. v. Woodson, 161 Mo. 444; Newman v. Hammond, 46 Ind. 119; Reyburn v. Bassett, McCahon (Kan.), 86; Fisk v. Thorp, 51 Neb. 1; State v. Atherton, 19 Nev. 332; Constitution of Missouri, article 6, section 3.

The general purport of the cases above cited is-that when power is conferred by the Constitution or .statutes upon a court to perform specific acts, such acts cannot be. performed by the person, or persons, constituting the court at a time when such court is not in session.

On this point the relator cites the case of State ex rel. Macklin v. Rombauer, 104 Mo. 619, in which the rule is announced that under his combined powers-as a chancellor and at common law, a judge of this court in vacation may issue a temporary rule in prohibition returnable to and triable by the court when the same shall have been lawfully convened.

The power to exercise our superintending control over the courts of appeals by writs of certiorari is given to us by the same section of the Constitution (Art. 6, see. 8, Amendment of 1884) which authorizes-us to superintend such courts by prohibition. By analogy it seems that, if a judge of this court may lawfully issue a temporary rule in prohibition while the-court is not in session, by the same token he may lawfully issue the writ of certiorari during vacation. Our Rule No. 25 seems to imply that such power exists. Therefore, the first insistence of respondents will be overruled.

II. On the second point in respondents’ motion to quash our preliminary writ is presented an argument far more ingenious and fervid than logical, in which we are invited to overturn the rules of law announced in our majority opinions in the cases of State ex rel. Curtis v. Broaddus et al., 238 Mo. 189; State ex rel. Evans v. Broaddus et al., 245 Mo. 123; and State ex rel. Iba v. Ellison et al., 256 Mo. 644. These cases will hereafter be referred to in this opinion as the Curtis, Evans and Iba cases.

In those cases we held, in effect at least, that it is just as much the duty of the courts of appeals to follow the last previous ruling of this court on questions of law and equity arising in cases pending before them, as it is to conform their proceedings to their jurisdictional limitations. In the. last named cases we also announced our power to quash judgments of courts of appeals where they refuse to follow the last previous rulings of this court.

Section 6, article 6, of the Amendment to our Constitution adopted in 1884 reads as follows:

“When any one of said courts of appeals shall in any cause or proceeding render a decision which any one of the the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals, or of the Supreme Court, the said Court of Appeals must, of its own motion, pending the same term and not afterward, certify and transfer said canse or proceeding and the original transcript therein to the Supreme Court, and thereupon the Supreme Court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; and the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals.”

The above quoted section of our organic law was enacted to bring about uniformity in the rules of law and equity in all the appellate courts of this State. As no uniformity could be expected if each appellate court should be permitted to adopt its own construction of the law, it was ordained by a succeeding clause of the same amendment (See. 8, art. 6, Amendment 1884) that this court should have a superintending control over the courts of appeals by mandamus, prohibition and certiorari. No limits were fixed on such right to superintend, and we should not write á limitation into the Constitution-which its framers have not seen fit to place there.

The argument of respondents’ learned counsel to the effect that the courts of appeals may be supervised or superintended by this court when they exceed their jurisdiction, but cannot be supervised when they refuse to follow the last previous ruling of this court, is equivalent to saying that some of the provisions of our Constitution were intended to be obeyed, while the last provision of section 6, article 6, Amendment of 1884, was intended only as a joke, and may' be disobeyed at any time the courts of appeals see fit to disregard it. This insistence of respondents is unsound. The citizens of Missouri are one people, and" in furtherance of the spirit of another provision of the Constitution inhibiting local laws, it is their desire that the same rules of law shall prevail in all parts of the State' and in each court thereof.-

But, say respondents, unless we overrule the Curtis, Evans and Iba cases we must overrule the following decisions of this court: State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Bland, 168 Mo. 1; State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Broaddus, 216 Mo. 336; and Missouri, Kansas & Texas Ry. Co. v. Smith, 154 Mo. 300.

We fully understand that situation, and, notwithstanding our high regard for the eminent jurists who fathered the decisions last cited, and our respect for their learning and judicial acumen, we are forced to take the Constitution as we find it — not necessarily as others have construed it. The Constitution is an instrument of such force that it perpetuates its own vitality, regardless of the number of times it be disobeyed. Past constructions of it, if correct, aid us in understanding its meaning, but erroneous interpretations of that instrument, however frequent and numerous, do not repeal its provisions or impair its virility. . •

Being fully convinced that the several cases last cited were incorrectly ruled, they are expressly overruled in so far as they conflict with the views expressed in the Curtis, Evans and Iba cases.

But, say respondents, the rule we have announced in the Curtis, Evans and Iba eases will force us to review by certiorari every case that may hereafter be adjudicated by our courts of appeals. This argument means that when a duty involves much labor it should be disregarded. We do not so understand the law, nor is that view in harmony with our official oaths. A few of the applications for certiorai i filed in this court would seem to support the pessimistic views of respondents’ learned attorneys, but the number of writs issued does not sustain such theory.

In speaking of our power to supervise the courts of appeals by 'certiorari, Lamm, C. J., in the Evans case (245 Mo. 1. c. 135), said: “That the power should be guardedly used with modest gentleness and always with circumspection argues nothing against its proper use. That its use is delicate and liable to abuse argues nothing against its nse when its nse is called for.”

By undertaking to make the rules of law and equity as announced by the courts of appeals conform to our own opinions it was never intended that the very language of the opinions of such courts of appeals should be made to harmonize with the decisions of this court as completely as the strings on a violin or the keys of instruments designed to transmit wireless messages. No such Utopian idea of judicial harmony can ever be hoped for. Before this court should quash by certiorari the judgment of one of the courts of appeals, the failure of such court of appeals to follow our last previous ruling should exist as a matter of real substance, and be so plain that no intelligent man with fair powers of discrimination would have difficulty in locating the conflict.

We may need rules which will require notice and an opportunity to be heard by written suggestions before writs of certiorari shall issue to quash judgments of our courts of appeals. If so, that is a mere matter of detail which does not detract from our jurisdiction to issue such writs.-

III. Relator contends that as there is no evidence of the value of the time lost by Nelson, is was reversible error to- give to the jury the instruction herein-before quoted. Respondents assert that . . , the giving o± said instruction was not error, and that the affirmance of the Nelson judgment was not such a failure to follow the previous rulings of this court as to warrant us in quashing their judgment.

This raises, a question preliminary to the main •issue in the ease, to-wit: Shall we ascertain what the evidence was in the Nelson case by the statement thereof as prepared by the respondents and recited in their written opinion, or shall we-read and review the evideuce in said Nelson case and ascertain if it has been correctly digested by respondents? We are of opinion that-we should not examine the evidence, but rely upon the facts as found and recited by respondents. We are aware that a somewhat different rule was adopted in the Curtis case (238 Mo. 189'), where the evidence was re-examined, but that case was in a different class to this one, having once been before us on the sufficiency of the evidence and a ruling made that such evidence for plaintiff made out a prima-facie case for the jury. We accordingly held in the Curtis case that our ruling on the evidence became the law of that case- and should not have been disturbed by the court of appeals without .a review of the evidence upon which our opinion was predicated.

The facts in the Nelson ease (now in judgment) have not heretofore been presented to us, and where that class of eases is brought before us by certiorari we will consider only the pleadings, evidence and facts as recited by the court of appeals whose judgment is sought to be quashed.

It may be argued that should the judges of the courts of appeals fail to state the pleadings and facts correctly (a point upon which I personally have no fears) it might- result in some individual case being decided incorrectly and not in harmony with our previous rulings; but that would not militate against the primary object sought by section 6, article 6, supra, i. e., the uniformity of judicial construction on issues of law and equity in this State.

The substance of the decisions of this court which relator claims the respondents have failed to follow in affirming the Nelson judgment are as follows: ' In Slaughter v. Railroad, 116 Mo. 269, 275, it was not charged in the petition that the plaintiff lost time by reason of his alleged injuries, and the trial court upon objection excluded evidence upon that point, but gave an instruction authorizing a recovery for loss of time. Held to constitute reversible error.

In the case of Davidson v. Transit Co., 211 Mo. 320, 344, there "was ah “entire absence of plaintiff’s probable impairment of earning capacity in the future, ’ ’ but the trial court, by its instructions, authorized a recovery for such impairment of earning capacity, and the judgment being for $12,000, the instructions were held to be erroneous and the judgment was reversed.

In the case of Duke v. Railroad, 99 Mo. 347, it was held that an instruction authorizing a recovery for “large sums incurred for medical services ánd nursing,” where there was no evidence as to the cost of such medical services and nursing, was reversible error.

Whether instructions were requested by defendants in the cases last cited limiting the recovery for loss of time to nominal damages does not appear.

Respondents contend that, under the facts disclosed in the Nelson case, there was enough evidence as to loss of time admitted without objection to raise a presumption that Nelson did lose some time and was entitled to at least nominal damages on that score; and that the relator has no just right to complain of said instruction. That if it was defective at all, such defect arose because it was too general, and that if relator was not satisfied therewith it should have requested an instruction on its own behalf limiting defendant’s recovery for loss of time to nominal damages. In this contention we think respondents are correct.

The opinion of respondents recites that Nelson was a common laborer and was confined to his bed more than three weeks. It is a matter of common knowledge that a man whose health and strength will enable him to perform common labor is able to earn some wages; but whether, a jury, will be presumed to know what the services of such common laborer are worth at a given time and place is a matter not necessary to a decision of this ease, and upon which we express no opinion.

In the recent case of King v. St. Louis, 250 Mo. 501, the evidence showed that the plaintiff was the keeper of a rooming house and before her injury was able to personally care for her rooms, but could not perform such work after she was injured. There was, however, no evidence introduced as to the value of her services, and it was held that an instruction authorizing a recovery for losses “directly caused” by her injuries did not constitute reversible error; the defendant in that case, as here, having failed to request an instruction limiting the plaintiff’s recovery to nominal damages for her alleged loss of earnings.

When the pleadings and evidence are sufficient to support an instruction on an issue, and the instruction submitting said issue is only objectionable on the ground that it is too general in form, it becomes the duty of the party who may wish to complain of said general instruction to request an instruction limiting the effect thereof so that it may not be misunderstood by the triers of the fact.

In Norris v. Railroad, 239 Mo. 695, l. c. 717 (a case more recent than any of those relied upon by relator), in discussing an instruction, it was said:

“In the trial of civil cases, many important duties rest upon the attorneys-for both plaintiff and defendant, among which is to aid the court in giving to the jury all the instructions which they need to enable them to arrive at a correct verdict; and the unsuccessful litigant is not entitled to a reversal because the instructions given at the request of his adversary do not cover all the points upon which instructions should have been given, unless such unsuccessful litigant has prepared and requested proper instructions on the points about which he complains. [Kerr v. Railroad, 113 Mo. App. 5; Harmon, v. Donohoe, 153 Mo. 274; Matthews v. Railroad, 142 Mo. 666; Browning v. Railroad, 124 Mo. 55.] ”

■ We think the alleged error in the Nelson case is without merit. If relator had requested an instruction directing the jury that Nelson could in no event recover more than nominal damages for any loss of time he may have sustained by reason of his alleged injuries, there being no evidence of what his time was worth, and such instruction had been given, then the defendant would have no cause of complaint — that it failed to request such an instruction it has no one to blame but itself. It is the policy of the law to give every litigant one fair trial, and if he fail to get a fair trial by reason of his own neglect, the appellate courts should turn a deaf ear to his complaint.

Entertaining the views herein expressed, our preliminary writ of certiorari in this cause will be quashed. It is so ordered.

Lamm, G. J., concurs; Walker and Bond, JJ., concur in all except the paragraph holding that we have jurisdiction; Woodson, Graves and Faris, JJ., concur as to our jurisdiction in opinions filed by Graves and Woodson, JJ., and dissent from the result reached.

DISSENTING OPINION.

GRAVES, J.

I concur fully as to what is said in sub-divisions one and two of this opinion. I have no doubt that a judge of this court in vacation can issue or direct the issuance of a writ of certiorari. Nor have I any doubt that it is the constitutional duty of this court to issue such writ, when it is called to the attention of this court, that one of the courts of appeals has neglected its constitutional duty to follow the latest ruling of this court upon the questions involved in the case such court is deciding.

I do not agree to the last snb-division of my brother's opinion, nor to the result reached. In my judgment the ruling of the Court of Appeals is not only in conflict with the cases suggested by the relator in this cause, but with several others which might have been mentioned. I therefore think the record of the Court of Appeals should be quashed.

Faris, J., concurs in these views.

DISSENTING OPINION.

.WOODSON, J.

I dissent from the majority opinion in this case for the reason stated by Judge Graves, in his dissenting opinion filed herein; and concur in the second paragraph thereof for the simple reason that the majority of the members of the court have deemed it wise to follow the ruling in the case of State ex rel. v. Broaddus, 238 Mo. 189.

While I do not deem that ruling to be sound, yet no good can come of continual dissents.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE ex rel. ELIZABETH SUMMERSON et al. v. JAMES E. GOODRICH, Judge of Circuit Court, and KANSAS CITY.
    In Banc,
    April 2, 1914.
    1. CERTIORARI: Things for Review. The writ of certiorari brings to the Supreme Court the record proper of the case begun in the trial court; and that being before the court, the things to be determined therefrom are whether the inferior court had-jurisdiction; or, having it, abused it; or, if acting within its jurisdiction, the case could not be reviewed by appeal or writ of error.

      2. -: Abuse of Jurisdiction: Grading Street. Where the petition of the city filed in the circuit court praying for the appointment of commissioners to assess whatever damages might be sustained by owners of certain abutting lots from grading a street, is drawn in substantial compliance with the municipal law governing such procedure and contains all averments necessary to give the court jurisdiction, and the subsequent proceedings up to and including the appointment of the commissioners (to which point the case had proceeded when the writ of certiora-ri was applied for) were likewise in conformity to the statute, there has been no such abuse of jurisdiction as to authorize the Supreme Court to interfere by its writ of certiorari.

    3. -: — : Interlocutory Order: Grading of Street: Commissioners to Assess Damages. The right to a writ of certiorari must he based upon a final adjudication of the matter involved. Where the cause to have damages assessed to abutting property owners caused by the grading of a street had proceeded no further in the trial court than the appointment of commissioners, the order appointing them was not a final determination of the proceeding, but merely interlocutory, and while no appeal or writ of error will lie therefrom, it will not suffice to authorize the issuance of a writ of certiorari.

    4. -: Substitute for Appeal: Improving Street: Assessment of Damages. The writ of certiorari cannot be used as a substitute for an appeal or writ of error. The statute provides that, if owners of property abutting on the street to be graded, are not satisfied with the assessment of damages made by the commissioners, they may file exceptions thereto and have a trial by jury, and if not satisfied with their verdict they may appeal; and hence the writ of certiorari should not be used to with-, draw the case from the consideration of the trial court at any intermediate stage before judgment, for instance, at the time the commissioners are appointed.
    5. -: Grading Street: Assessment of Damages: Filing Ordinance. The fact that the city, when it brought its suit to have commissioners appointed to assess damages to owners of abutting lots caused by grading a street, did not file with the circuit clerk the ordinance authorizing the proceeding, will not justify the issuance of a writ of certiorari. The ordinance is no part of the record proper.
    6. ADOPTION OF STATUTE: Is Adoption of Procedure. Where the charter authorized the city to proceed under ordinance to have damages assessed for a public improvement or by ordinance to adopt for that purpose the condemnation statutes of the State, and the city by ordinance adopted those statutes, such parts of the procedure prescribed by such statutes as were applicable were likewise adopted.

      Certiorari.

    Writ quashed.

      Piatt & Marks for relators.
    (1) The passage of an ordinance and the filing of a certified copy thereof were conditions precedent to the making of any order whatsoever by the circuit court and because of the city’s failure to comply with the charter requirements in that regard the circuit court was without jurisdiction or authority to issue summons or to appoint commissioners, and its orders so doing should be quashed. Kansas City Charter (1908'), art. 6, sec. 17; Ibid., art. 7, sec. 5; State ex rel. v. St. Louis, 67 Mo. 113; St. Louis v. Franks, 78 Mo. 41; Kansas, City v. Ford, 99 Mo. 91; St. Louis v. Gleason, 89 Mo. 67, 93 Mo. 33; School Disk v. Dorton, 125 Mo. 439 ; St. Louis v. Koch, 169 Mo. 587; City of Tarkio v. Clark, 186 Mo. 285; Williams v. Kirby, 169 Mo. 622;' In re Bledsoe Hill, 200 Mo. 643; Whiteley v. Platte Co., 73: Mo. 30; Zimmerman v. Snowden, 88 Mo. 220; Spurlock v. Dornan, 182 Mo. 250'; Railroad v. Young, 96 Mo. 43; Anderson v. Pemberton, 89 Mo. 61; Kansas City v. Smith, 238 Mo. 330. Section 18, article 7, of the charter, upon which respondent relies for authority to maintain these proceedings, does not dispense or purport to dispense with the necessity of passing and filing a certified copy of an ordinance as required by the two sections of the charter above cited, but simply attempts to authorize an additional method for ascertainment of damages. Said section 18, article 7, is so limited both by its title and by its terms. (2) The filing of a certified copy of the ordinance being essential to jurisdiction of the subject-matter in proceedings instituted under the Charter of 1908, a record failing to affirmatively show compliance with said requirement shows on its face that the court had not acquired jurisdiction of the subject-matter, notwithstanding a general recital in the order appointing commissioners that, “the court finds plaintiff has complied with all the conditions of the charter of Kansas City and the statutes of Missouri.” Leonard v. Sparks, 63 Mo. App. 597; State ex rel. v. Duncan, 150 Mo. App. 413; Kansas City v. Smith, 238 Mo. 330. And the conclusion so recited being flatly contradicted by the record itself, the latter controls. Crow v. Meyersieck, 88 Mo. 411; Cloud v. Pierce City, 86 Mo. 367; Adams v. Cowles, 95 Mo. 652; Blodgett, v. Schaefer, 94 Mo'. 652; Milner v. Shipley, 94 Mo. 106; Laney v. G-arbee, 105 Mo. 355; Feurt v. Caster, 174 Mo. 303. (3) Even if the city were authorized to institute these proceedings under the provisions of article 7, chapter 12, R. S. 1899-, (now Art. 2, chap. 22, R. S. 19091), still this record should be quashed for the reason that there was no finding made by the court upon the issue whether or not relators had an opportunity to agree and could not agree with the city as to damages. That issue tendered by the petition, was squarely joined by the answers of relators, and the court was without authority to appoint commissioners until it was first found to be a fact that the parties could not “agree on the proper compensation.” R. S. 1909, sec. 2360; Lind v. Clemens, 44 Mo. 540; Leslie v. St. Louis, 47 Mo. 478; Ells v. Railroad, 51 Mo. 200;; United States v. Reed, 56 Mo. 565; Railroad v. Campbell, 62 Mo. 585; Railroad v. Young, 96 Mo. 39; Tarkio v. Clark, 186 Mo. 299; Kansas City v. Smith, 238 Mo. 330. (4) If the proceeding in the circuit court was a “civil action,” within the meaning of our code of civil procedure, then the new matter pleaded in relators’ answers should have been taken as confessed,'for failure of plaintiff to reply thereto. State ex rel. v. Biley, 203 Mo. 175; B. S. 1909, sec. 1810. Belators had the right to tender the issues of fact pleaded in their answers, to-wit, that the proceedings are ultra vires because instituted for the private and exclusive benefit of the Kansas City Terminal Bailway Company, and that no attempt had ever been made by the city to agree with relators as to compensation, which issues the court was bound to determine before commissioners could lawfully be appointed. By ignoring these issues and appointing commissioners without any finding’upon said questions of fact, the court clearly overstepped and exceeded its powers. • Bail-road v. Bailroad, 94 Mo; 543 ; State ex rel. v. Engelmann, 106 Mo. 633; Kansas City v. Smith, 238 Mo. 330.

      Andrew F. Evans and Francis H. Hayward for respondents; Samuel W. Moore, Samuel W. Sauryer and Clarence S. Palmer of counsel.
    (1) Certiorari does not lie. State ex rel. v. Walbridge, 123 Mo. 532; State ex rel. v. Edwards, 104 Mo. 125; State ex rel. v. Snyder, 47 Mo. App. 675; State ex rel. v. Shelton, 154 Mo. 693; Bailroad v. Bailroad, 94 Mo. 535; Clemons v. Insurance Co., 184 Mo. 46; Smith v, Sedalia, 244 Mo. 107. (2) Under the provisions of the charter of Kansas City, the filing in the circuit court of the ordinance providing for the proceeding to ascertain damages was not only unnecessary but would have been improper. Charter of Kansas City, art. 7, secs. 4-18; B. S. 1909, chap. 22, art. 2; 1 Lewis, Em. Dom. (3, Ed.), sec. 404; Kansas City v. Duncan,'135 Mo. 571. (3) The alleged failure to •agree with the defendants does not affect the validity of the proceeding. B. S. 19091, sec. 23601; Cory v. Bail-road, 100 Mo. 291; Bailroad v. Townsite Co., 103 Mo. 469; Bridge Co. v. Stone, 194 Mo. 187; Kansas City v. Mastín, 169' Mo. 92; Kansas City v.’Block, 175 Mo. 433; St. Lonis v. Lanigan, 97 Mo. 179; Blair v. Railroad, 89 Mo. 395; Green v. Walker, 99 Mo. 68; Tnrley v. Edwards, 18 Mo. App. 681; 3 Cook on Corporations (6 Ed.), sec. 741; State v. Superior Court, 91 Pac. (Wash.) 639; Same Title, 92 Pac. 269, 93 Pac. 423; Bridge Co. v. Stone, 194 Mo. 187.
   WALKER, J.

This proceeding is based upon a writ of certiorari issued out of this court to the circuit' court of Jackson county.

On October 2, 1912, one of the respondents, as plaintiff in the original action, to-wit, Kansas City, through its counsel, filed in said circuit court a petition praying for the appointment of commissioners to assess whatever damages might be sustained by owners of certain lands abutting on Independence avenue in said city by reason of the grading of said avenue, and to fix the compensation to which said owners .were entitled on account of said grading. This petition was filed under the authority of section' 18, article 7, Charter of Kansas City of 1909, which is as follows: “In addition to the method hereinbefore provided in this article for ascertaining the damages, if any, arising from proposed grading, or regrading of any street, avenue, alley or public highway, or part thereof, whenever the city shall deem it necessary, and by ordinance so determine, it may adopt the same procedure for ascertaining the damages caused by such grading or regrading as is prescribed in the general laws of the State for the appropriation and valuation of lands, taken for telegraph, telephone, gravel and plank or railroad purposes, being article 7 of chapter 12 of the Revised Statutes of Missouri of 1899. Upon paying to the clerk of the 'circuit court the amount of damages awarded, the city shall have the right to proceed with such grading or regrading, notwithstanding the filing of exceptions to such award, and any subsequent proceedings shall only affect the amount of compensation to be paid.” [Now Art. 2, chap. 22, E. S. 1909.]

On the day the petition was filed, a summons was issued for the defendants, who were the abutting property owners, returnable October 16, 1912.-

On the return day the defendants appeared and through counsel made return by a motion to dismiss and quash the proceedings, which motion was by the court on October 17, 1912, overruled. On October 18, defendants filed separate answers to the petition, and on October 19, 1912, commissioners were appointed by the court to assess the damages and fix the compensation to which the abutting owners were entitled by reason of the grading of said avenue.

The commissioners were appointed and sworn, whereupon defendants, who are the relators here, applied for and were granted a writ of certiorari to bring the record before this court for review.

The petition filed herein to determine the damages for the grading of said Independence Avenue is substantially as follows:

It states the incorporation of plaintiff and certain of the defendants, and alleges the authority of Kansas City, under its charter, to open and establish public streets, provide for the grading or regrading of same, and for the payment of damages caused thereby to abutting property owners, and avers its authority to institute, in the circuit court, proceedings to determine any damages which may result to private property, if any, by the grading or regrading of any avenue, alley, etc. It further alleges that by an ordinance, therein designated by number, entitled, “ An ordinance providing for and authorizing the work of grading Independence Avenue from a point,” etc. — here follows a particular description of the part of said avenue to be graded — according to the grade established and the width provided in the ordinance referred to; that defendants are the owners or claim to be the owners, or claim an interest in the lands abutting upon said portion of said avenue required to be graded by said ordinance — following this the tracts of land owned or claimed to be owned by said defendants are particularly described, according to government subdivisions. It is further alleged that said land may be disturbed or damaged by said grading, and that the owners have not waived all right or claim to damages, and may be entitled to remuneration or damages under the State Constitution; that it is provided by the ordinance for grading said avenue that this plaintiff shall institute proceedings in the circuit court under the provisions of chapter 22, article 2, of the Revised Statutes of Missouri of 19091, for the purpose of determining what damages, if any, are suffered by defendants on account of the proposed change of grade and the grading of said avenue as aforesaid. The filing therewith of a plat showing the location of the property of defendants, which contains a profile of the proposed change of grade, together with the general manner of constructing the street affected by said grade, is also alleged. The allegation is also made that plaintiff has been unable to agree with the defendants or any of them as to the amount of damages to which they or any of them are entitled. It, therefore, prays for the appointment by the circuit court of three disinterested freeholders, residents of Jackson county, as commissioners, to assess the damages which the respective owners of said lands and any person or persons having an interest therein may sustain by reason of the grading of said avenue, and to fix the compensation by which said respective owners and such person or persons having any interest therein may be entitled on account of said grading.

I. Certiorari. Under our procedure the office of the writ of certiorari is the same as at common law, and, consistent with the letter and spirit of existing statutes, our courts may properly adopt the usages and principles applicable to the issuance of the writ as same may have been developed under the common-law system. [State ex rel. v. Wurdeman, 254 Mo. 561.] The office of the writ as developed under our procedure, following the precedents of the common law, is to bring the record of the proceedings of inferior courts before a superior court to determine the legality of the former’s acts. [State ex rel. v. Wiethaupt, 254 Mo. 319.] The writ, therefore, brings up for review the record proper which, in this case, consists of the pleadings, the order for the summons, the summons, the return of service and the order appointing the commissioners. [Smith v. Moseley, 234 Mo. l. c. 495.] The record being before us, it remains to be determined therefrom whether the lower court had jurisdiction, or, having it, abused same,'or if acting within its jurisdiction the proceeding could not be reviewed by appeal or writ of error. [State ex rel. v. Shelton, 154 Mo. 670.]

A comparison of the petition with the requirements of section 18, article 7, of the Charter of Kansas City, and of article 2, chapter 22, Revised Statutes 1909, to which said section, supra, refers for its procedure, shows that the petition is drawn in substantial compliance with the requirements of said section of the municipal law and the State statute and contains all the necessary averments to give the circuit court jurisdiction. [K. C. Int. Ry. Co. v. Nelson, 193 Mo. 297.]

The subsequent procedure up to and including the appointment of the commissioners- is likewise in conformity with the requirements of the statute (Secs. 2360-2362, R. S. 1909) and no well-defined objections can be made thereto. There appears, therefore, to have been no such abuse of jurisdiction as to authorize our interference; but it remains to be determined, if the trial court had jurisdiction, is the proceeding such that the same cannot he reviewed upon final determination by appeal or writ of error? This canse had proceeded no further in the trial court than the appointment of the commissioners, which was not a final determination of the proceeding, but was merely interlocutory in its nature, and, therefore, as a consequence no appeal or writ of error would lie therefrom. [St. Joe Term. Ry. v. Railroad, 94 Mo. l. c. 540.] But an interlocutory order, which if erroneous may be corrected pending the proceeding, will not suffice to authorize the issuance of a writ of certiorari (State ex rel. Walbridge v. Valliant, 123 Mo. 524; State ex rel. v. Edwards, 104 Mo. 125); the right to the writ must be based upon a final adjudication of the matter involved. Upon the report of the commissioners being filed with the clerk of the court, it becomes the latter’s duty to notify the defendants whose property is affected, of the filing thereof, and such defendants are thereupon authorized to file written exceptions within ten days thereafter. Such exceptions may, under a reasonable construction of the statute, be in the form of an answer, or as specified objections, or, in fact, in any form which will bring clearly to the court’s attention the grounds of defendant’s complaint. Thereupon the court is required to make such order therein as right and justice may require, and order a new appraisement upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury under the court’s supervision as in the case of ordinary inquiries as to damages. [Sec. 2364, R. S. 1909.] Upon the refusal of the court to grant such new appraisement, or upon the bringing in of the verdict of the jury and the rendition of a judgment thereon, an appeal is authorized. [Sec. 2038, R. S. 1909; So. Ill. & Mo. Bridge Co. v. Stone, 194 Mo. 175.] It is the well settled law of this State that where a court has jurisdiction and its action can be reviewed by appeal or writ of error, certiorari will not lie. [State ex rel. v. Mosman, 231 Mo. 474; State ex rel. v. Shelton, 154 Mo. 670.] If this were not true, then the writ might be used to withdraw any case, at an intermediate stage, from the consideration of the trial court and submit it to the final determination of the superior tribunal issuing the writ; or, in other words, at each successive step of the proceeding in the court below, the case might be brought before the superior court for review and the jurisdiction would, therefore, be transferred from the tribunal invested by law with authority over the subject-matter, and transferred to the superior court for final determination. This would in effect render the writ a substitute for appeal or writ of error, which is an unauthorized exercise of •same. [State ex rel. v. Mosman, supra.]

II. Filing of Ordinance. Relators contend that the trial court was without jurisdiction, because, as they allege, the ordinance authorizing the proceeding was not filed with the circuit clerk, and that this was a condition precedent to the institution of the suit.

The petition pleads the ordinance by number, title and date of approval, and relators demonstrate their familiarity with same by setting it up in their answers. The plea of its non-production, therefore, is purely technical, and we will presume that the trial court, having conformed in other respects with the requirements ■of the statute, proceeded regularly in this regard. [Kansas City v. Block, 175 Mo. 433; St. Louis v. Lanigan, 97 Mo. l. c. 179.] The record proper to which •our consideration is. limited in cases of this character, shows clearly that the trial court had jurisdiction •of the persons and subject-matter, and the ordinance referred to being no part of the record proper will not, therefore, be considered.' There may be a question, which we do not decide, as to whether in a case presenting the facts of the one at bar, the filing of the ordinance is a necessary prerequisite to the institution of the suit, but in any event we hold that relators ’ contention is without merit.

III. Manner of Procedure. The purpose of this proceeding would have been as well if not better served had the same been prosecuted under an ordinance of the city found in the same article of the charter as section 18, supra, embodying all the necessary provisions as to procedure, without reference to a state statute, many of the provisions of which are not in harmony with the purposes of said section 18. The incongruities are not sufficient, however, to render the ordinance invalid, and we are, therefore, authorized in referring to the State statute for the procedure necessary to the enforcemnt of the ordinance so far as the statute is applicable thereto. The rule being well established in other jurisdictions that where one statute adopts the procedure outlined in another, such parts of the procedure as are applicable- may be adopted. [Phillips v. Co. Commissioners, 122 Mass. 258; McSweeney v. Commonwealth, 185 Mass. 371; Water Dist. v. Waterville, 96 Me. 234; 1 Lewis’s Em. Dom. (3 Ed.), sec. 404.]

Being satisfied from the record as to the trial court’s jurisdiction and that same has not been abused, and that relators have an ample right to redress in an appeal or writ of error after a final judgment rendered herein, we are of the opinion that our writ should be quashed, and it is so ordered.

All concur.