author: SMALL, C.

text:
    ADAIR DRAINAGE DISTRICT v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant.
    Division One,
    December 20, 1919.
    1. SURFACE WATER: Common Enemy. Surf act water, including flood water from overflowing rivers and streams, is a common enemy, which all persons have a right to ward off, and against which, railroads unless otherwise provided by statute, have a right to protect their right-of-way by building erábankments thereon, even though thereby such surface and overflow water is' backed up onto and injures the land or crops of others.
    2. OVERFLOW WATER: Railroad Embankment: Section 3150. The statute (Sec. 3150, R. S. 1909) requiring a railroad company to construct suitable openings through its roadbed so as to afford sufficient outlet to drain and carry off surface water whenever the draining of such water has been obstructed by the construction of the railroad, does not apply when the effect of the embankment constructed by the railroad through a river bottom is to cause the surface water to flow towards the channel of the -river and to keep it from flowing, away from it.
    3. -: -: Drainage Act. Section 26 of the Circuit Court Drainage District Act of 1913 does not give to the drainage district the right to compel a railroad company, at its own expense, to open a passage way through an embankment thrown up across the old bed of a lake or slough in the river bottom into which rain water from the surrounding lands drains and into which waters ' from the river overflow in times of flood.

      í. -: -: -: Bridges: Pleading: No Engineer’s Flan. Whether Section 30 of the Circuit Court Drainage Act of 1913 applies at all to a mandamus suit to compel a railroad company to construct suitable openings through an embankment constructed through low lands in a river bottom, or whether it simply gives the drainage district a right of action for the costs of constructing a bridge or opening, it cannot be ruled in a mandamus suit wherein the alternative writ contains no allegation and there is no evidence 'that the chief engineer for the district had prepared a plan and specifications for such bridge or openings, that the railroad company must build such openings, because by said section bridges required to be constructed by they act are to be built according to the plans, specifications and orders of the engineer for the district.
    5. -: Obstructions in River Channel: Mandamus. In mandamus relator must make out his case by clear and cogent proof, and the writ will not lie unless his right thereto is clear, plain and not doubtful, so where a drainage district, sues to compel a railroad company to remove obstructions in the channel of a river, and the evidence shows that at the time of the trial such obstructions had been substantially, though not entirely removed, and that they did not cause the water to materially, if at all, injure relator’s drainage ditches, the peremptory writ- will not go.
    Appeal from Adair Circuit Court. — Hon. Jas. A. Cooley, Judge.
    Reversed.

      Campbell & Ellison and J. G. Trimble for appellant.
    (1) In tbe state of the pleadings at the: time objection was made to introduction of testimony; and the motions to quash the writ were filed, they should have been sustained! as there was no reply, to appellant’s return. (2) If it were true that there was drift in the river which had! injured relator’s ditch, it bias an adequate remedy at law and therefore mand'amus will not lie. 2 Bailey on lib. Corp. and Extraordinary Remedies (3913), p. 800; Bayard v. United States, 127 U. S. 246. Relator having’ an adequate remedy at law, even if it had been injured, cannot maintain mandamus. State ex rel. v. Gibson, 187 Mr. 553; State ex rel. v. Wurdeman, 187* S. W. 258; Caruth v. Richeson, 96 Mr. 186; People ex rel. v. Railway, 177 N. Y. 296. Appellant had a perfect right to take trestle bridges out of its railway and. make its embankment one of solid earth. This is directly decided in the Vanlandingham case, 206 S. W. 399. The case of Goll v. Railroad, 271 Mo. 655, is as much applicable to the present case as to the Vanlandingham case.

      Higbee & Mills for respondent.
    (1) This proceeding is authorized by Sec. 5513, R. S. 1909', as amended by Sections 26, 30 and 62, pp. 249, 250 and 266, Laws 1913. The plaintiff district is authorized to clean out, straighten, widen, change the course and flow of any volume of water, alter or deepen any ditch, etc., in or out of the district, concentrate, divert or divide the flow of water in or out of the district; to remove any fence, building or other improvements in or out of said district, in order to effect the drainage and reclamation of the land” in the district. Plaintiff is entitled to invoice the said of the court to remove the obstructions to the flow of the surface water caused by the improvements; that is, filling the trestles with earth embankments. Pere Marquette Railroad Co. v. Weilnan. 122 N. Wi.' (Mich.) 303!; C. B, & Q: v. Board of Supervisors, 182 Fed. 291, 31 L. R. A. (N. S.) 1117; Drainage District v. Railroad Co., 99 Kan. 188; Riffe v. Ry. Co., 207 S. W. 78 (syl. 13); 26 Cyo. 296. (2) Respondent admits that it rebuilt its bridge over the river in 1910, and that a large amount of driftwood accumulated in the channel of the river north of the bridge, but claims it has removed the driftwood. Some of this driftwood is still in the channel of the river. The flow of water having been thus obstructed, the channel necessarily filled with sand which covered up timbers that remain in the bed of tire river. This deposit in the bed of the river necessarily obstructs the flow of water and the ditch can. cut no deeper than the river. The water in the river is lower south of the bridge than north of it. (3) The Drainage Act was enacted for the purpose of effecting the reclamation of swamp and overflowed lands, is highly salutary and remedial. It repeals the common-enemy doctrine of the common law respecting surfa.ee water. The respondent has no right to construct solid embankments over such lands to their injury that is protected by the Federal Constitution, nor does the Drainage Act deprive it of its property without due process of law. Railroad v. Tranbarger, 35< S. C. Rep. 678, affirming: Tranbarger v. Railroad, 250 Mo. 46. •
   SMALL, C.

This is a suit in mandamus to compel the appellant to remove obstructions in the Chariton River and to make openings in an embankment on its right of way. The embankment is without openings except a pipe three or four feet in diameter. The embankment commences about two hundred feet west of appellant’s bridge over said river and extends thence southwesterly about one-half mile. It constitutes the south boundary line of the relator drainage district, and was built across the bed of an old lake or depression in the land, which was usually dry except in times of heavy rains, and was from five to ten feet lower than the bank of the river, for some distance north and south of the embankment. The drainage district extends north seven miles, to the north line of Adair County and embraces about seven thous- and acres of swamp or overflow land. The Chariton River runs in a tortuous and crooked course south through the district. The main ditch of the drainage district was' built in 1911 and extends through the district from north to south, emptying into the river about four hundred feet north of appellant’s bridge, on the east side of the river, where it bends to the west. This ditch wasi built across the land in the bends of the river, and was about twenty-éight fee*t wide and sixteen feet deep. The bottom of the river was generally about twelve feet lower than the bottom of the ditch. This plan of construction contemplated that when the river arose to the bottom of the ditch the water would flow through and wash and “scour” the ditch out and thus ultimately widen, and deepen it. There had not been sufficient water in the river .to flow through the ditch to any appreciable extent until the spring and summer of 1915, and it had caved in and dirt had accumulated in it to some extent at that time.

The charge in the alternative writ, among other things, is that in 1910 the railroad company wrongfully and negligently caused and permitted large amounts of drift-wood and other material to obstruct the flow of. said river, near its said bridge, and in 1912 it wrongfully erected on its right-of-way a .solid embankment from fifteen to twenty feet high from a point about two hundred'feet west of said bridge to a point about one-half mile west thereof, where its tracks had previously been on piles and trestles, and did not construct openings through said embankment to connect with the drain or lowland running south of said railroad, so as to afford an outlet to drain and carry off the surface water accumulating on the lands within said district; that by reason thereof the flow of said river during stages of high water and the surface water accumulating on the lands embraced within said district from drainage, rain-fall and overflowing of s-aid river in the months of June and July, 1915, were so obstructed that the water backed up and was caused to overflow the lands embraced within the drainage district and destroyed the crops thereon, and the. ditches of relator were partially filled with sediment and the flow of water therein obstructed and said ditches rendered useless.

The return put the matters charged in the alternative writ in issue. Any new matter in the return was denied by*the reply.

The evidence, in the main, sustained the allegations of the relator, and showed damage to the crops on some of the lands ydthin the district, from the overflow complained of. There was evidence that the river had been obstructed a few years before by debris left in it when appellant’s bridge was constructed, hut that such; obstructions had been substantially, but not entirely, removed. But the evidence failed to show any substantial damage to the ditch of the drainage district. In fact, one of the relator’s witnesses testified that most of the ditches he saw were scoured out- by the flood and: were deeper and wider than they were before. There was no contradiction to this testimony. The embankment caused the water at times to be from sixteen to twenty-two inches higher on the north side than it was on the south side of the embankment, and to back 'the water up- on the land north of it, where it stood for some days longer than it otherwise would have done. It also caused a current to run east along the embankment nearly or quite to the bridge, where it turned south and escaped with accelerated speed.

There was no allegation in the alternative writ and no evidence of anv plans or specifications for bridges or other structures having been madle bv the drainage district engineer, or anv one, or of the size or character of the openings through its embankment, which appellant would Be compelled to make to comply with the peremptory writ. To remove the embankment and restore the trestle as it was before, the appellant’s engineers estimated would cost $18,000. For this reason the Kansas Citv Court of Appeals, to which the appeal was taken, transferred the case to this court.

A plat showing the ditch, river, boundaries of the district and railroad right of wav was introduced bv relator. The material part of it, showing the south two miles or more of the ditch, is as follows:

After hearing- the evidence the court granted the peremptory writ, which, following’ the alternative writ, commanded the appellant company to remove the obstructions in the river and “construct andi maintain suitable openings” through said right-of-way and roadbed and ditches ‘ ‘ along said railroad about one half mile, westward from a point about two hundred feet west of said bridge over said Chariton River, to connect with drains and carry off the water, including surface water, that may accumulate on the land in said Adair Drainage District, so that such waters will not be obstructed in their flow, and that relator recover” costs, etc.

At the commencement of the trial, the appellant objected to the introduction of any evidence “for the reason that the alternative writ does not contain facts sufficient to constitute a cause of action against this respondent. ’ ’

At the- close of relator’s testimony, the appellant moved “the court to quash the alternative writ of mandamus heretofore issued in this cas?, and to dismiss this cause,” which the court overruled, to which appellant excepted. This motion was renewed at the close of all the evidence, overruled and likewise excepted to.

I. Section 3150, Revised Statutes 1909, on which the proceeding seems to be based, at least in part, provides that it shall be the duty of every railroad company, within three months after the com- ... „ ., , , , . pletion of its road, to cause -to be constructed “suitable openings across and through the right of way and roadbed of such railroad . . . so as to afford sufficient outlet to drain and carry off the water, including surface water, along such railroad whenever the drainage of such water has been obstructed or rendered necessary by the construction of such railroad; and in case such corporation . . . shall fail” so to do “within the time limited in this article, any person owning land adjoining such railroad where such ditches or drains are necessary is hereby authorized, after giving thirty days’ notice, in writing, to such owner or operator of said railroad, by service up'on the nearest station agent or section foreman, to cause such ditches, drains, openings, culverts or trestles to be constructed and maintained, and such land owner may maintain an action against such corporation, company; or person so failing to construct and maintain such ditches or drains, in any court of competent jurisdiction, and shall 'be entitled to recover all costs, expenses and damages, incurred and accruing in the construction and maintainance of such ditches, drains, openings, culverts or trestles; . . . and any corporation, company or person failing to comply with the provisions of this section shall incur a penalty not to exceed two hundred dollars and be liable for all damages done by said neglect of duty, and each neglect of duty shall be a separate offense.”

Since this case was tried in the court below, Division Two of this court, in Goll v. Railroad, 271 Mo. 655, a case similar to the one at bar, in an opinion by Roy 0., construed said section and thoroughly reviewed the decisions of this court as to surface water, and re-affirmed the doctrine that at common law, as declared to exist in this State, surface, water, including flood water from overflowing rivers and streams', is a common enemy— an Ishmaelite whose hand is against every man and every man’s hand is against it — and that a railroad company, except as otherwise provided by statute, has i: right to make embankments on its right of way and thereby ward off surface water from its property, even though it is caused to back up and overflow and injure the lands and crops of others. In that case, the plaintiff owned a farm on thei north side of the Missouri River, near Glasgow, and the defendant’s railroad walocated in the bottom on,the south side of the river. As originally constructed, said railroad was partially on trestles, through whipk the water drained off to the-south, but afterwards the trestles were filled up, without leaving any openings therein, and thereby the water from the river, in times of flood, was obstructed and caused to back up. to the north and overflow the plaintiff's lands. The court held that said Section 3150 did not apply and plaintiff, whose crops had been destroyed, had no cause of action. The court said, l. c. 668:

“It remains to be considered whether the defendant is liable under Section 3150 of our Revised Statutes. We will presume, without deciding, that a person owning land not adjoining defendant’s right of way may sue under such section. However, we cannot overlook the fact that the river runs between the railroad andi plaintiff’s land. The section of the statute under consideration very clearly shows a purpose to get rid of the surface water and tb|e water of streams which would be obstructed by the roadbed, and prevented from running into a watercourse. That section, in our judgment, cannot be construed to require that openings shall be made to let the water out of a river whose channel has not been obstructed. The whole purpose of our drainage laws seems to be to get the water into the rivers and to keep it there. We concede that the Legislature may provide that no person or railroad company may obstruct the overflow of streams, but it has not yet done so, at least in such away as to affect this cause.”

. The same situation presents itself here. ' The south end of relator’s ditch is on the east sidie of the river four hundred feet north of appellant's bridge and some three hundred feet east of appellant’s embankment (the river itself being about one hundred feet wide). The embankment is on the west side of the river, and backed up the water northwardly towards the bend in the river, and also caused it to flow eastwardly along) the embankment towards and into the river, at or near the bridge. So that, as in the Goll case, the effect of the embankment here was to cause the water to flow towards the channel of the river and to keep it from flowing away from it. And, as in that case, so in this, the property claimed to have been injured was on the opposite side of the river from the embankment. Following, and on the authority of the Groll case, the Kansas City Court of Appeals, in an opinion by Ellison, J., held that Vanlandingham, one of the relator’s witnesses in this case, could recover nothing for the damage to his crops by reason of the embankment and overflow shown here. [Vanlandingham v. Railroad, 206 S. W. 399.]

"We hold, therefore, that said Section 3150 does not authorize the judgment of. the circuit court in this case.

II. Indeed, learned counsel for relator in their brief expressly disclaim that this action is founded upon said Section 3150. but assert that it is a proceeding “under the Drainage Act, to require ^ TPTr)0vf,] 0-j? obstruction in the river and of the embankment that forms a dam over a natural drain that continues on south and connects with the river, through which the floods have always escaped' to the river.” Tt is not staged in the alternative writ, nor shown in the evidence, that this natural dirain is anything more than the old bed of a lake or slough or lowland in the bottom west of the Chariton River, which drained the rain water which fed upon the land itself, or overflowed' from the Ever when it was out of its banks. The fact that it drained off the flood water from the river, as well as rain water from the land, did not change its character as a surface water drain.

In the Goll case, supra the court, savs (l. c. p. 668):

“In the absence of a good reason for a change, law, like water, should be kept as near as possible within its old and well defined channels, and we shall hold fast to our rule that overflow water in Missouri is surface water.”

In other words, this drain was not a water course, such as a creek or river, which, at common law could not be obstructed, but was simply a surface ivater drain, which at common law, as construed and applied in this State, could lawfully be obstructed by any landowner building an embankment upon his land. [Goll v. Railroad, supra.]

The sections of the Drainage Act relied upon by relator are. Sections 26, 30 and 62, Laws 1913, page 249 et seq.

Said Section 26 empowers the drainage district “to clean out, straighten, widen, change the course and flow, alter or deepen any ditch, drain, river, . . . in or out of said district; ... to concentrate, divert or divide the flow of water in or out of said districts; to construct and maintain main and lateral ditches, . . . and any other works and improvements deemed necessary to preserve and maintain the works in or out of said district; to construct or enlarge or cause to be constructed or enlarged any and all bridges that may be needed in or out of said district across any drain, ditch, . . . railroad right of way, tract, grade, All or cut; . . . to construct any and all of said works and improvements .. . . through or over any public highway, railroad right of way, track, grade, fill or cut in or out of said district; to remove any fence, building or other improvements in or out of said district, and shall have the right to hold, control and acquire by donation or purchase, and if need be, condemn any land, easement, railroad right of way, ... in or out of said district for right of way, ... or for any of the purposes herein provided, or for material to be used in constructing and maintaining said works . . . for draining, protecting and reclaiming the lands in said district. . . . Said board [of supervisors] shall also have the right to condemn for the use of the district, any land or property within or without said district mot acquired or condemned by the court on the report of the commissioners assessing benefits and damages, and shall follow the procedure that is now provided by law for the appropriation of land or other property taken for telegraph, telephone and railroad rights of way.”

Relator’s contention that the above or any language in said Section 26' gives to the. drainage district the right to compel the railroad company to open a passage way for water through the embankments on its right of way without its consent, and at its own expense, and without • the district first having acquired by donation, purchase or condemnation, the right so to do, is wholly untenable. The plain provisions of said section above' set forth clearly require the acquisition of such right by donation, purchase or condemnation.

Section 30 provides: “All bridges contemplated by this act and all enlargements of bridges already in existence shall be. built and enlarged according to and in compliance with the plans, specifications and orders made or approved by the chief engineer of the district. If any such bridge ... be needed over a . . . right of way of any corporation, the secretary of said board of supervisors shall give such corporation notice. . . . A failure to construct . . . such bridge within the time specified in such order” authorizes the district to construct the bridge, at the expense of the railroad, “which costs shall be collected by said board of supervisors from said corporation, by suit therefor, if necessary.”

Whether the above section applies at all to this case, or if it does, whether it authorizes mandamus to compel the railroad company to build the bridges, or limits the action against it to one for the expense of building the bridges after they have been constructed by the drainage district, are questions not necessary for us to' decide, because there is no allegation in the alternative writ and no evidence'that the chief engineer of the relator or any one ever prepared any plans or specifications for any such bridges, or for the openings in appellant’s embankment commanded to be made by the writ in this case. No “bridges” other than such as are in accordance with such plans are required to be paid for or built by tbe railroad company by said Section 30*.

Section 62 simply, in general terms, retains all existing rights, liens, remedies, etc., given to drainage districts by the statute that are repealed by said act, in addition to those- created by the act itself and provides that the act is remedial and shall be liberally construed.

So that, there is nothing in the Drainage Act to support the proceeding under review in this case.

III. "What has been said applies only to the obstruction caused by the embankment. There is also- complaint by relator in the alternative writ of obstructions in the channel of the river itself. But the evidence shows that at the time of the trial such obstructions had been substantially, although not entirely, removed, and that they did not cause the , , , • -n water to materially, if at all, injure relator’s ditches. In fact, according to the evidence of relator’s witness who saw tkiem before and after the flood of June and July, 1915, the ditches were thereby washed or “scoured out,” so as to be wider and deeper than they were before, as was intended by their plan of construction. There is some evidence that the flow of water in the ditches may lrnve been impeded to some extent, but, if so, this may have been, and probably was, caused by the embankment for which appellant is not liable, and not, to any appreciable extent, by the debris in the river, which relator’s witness says had “practically” all been removed. The burden of proof requires the relator to make out its case by clear and cogent evidence. Mandamus is an extraordinary remedy, and will not lie unless relator’s right thereto is dear, plain and not doubtful. [State, ex rel. v. Gibson, 187 Mo. l. c. 553; State ex rel. v. McIntosh, 205 Mo. 610; State ex rel. v. Bridge Co., 206 Mo. 74; State ex rel. v. Hudson, 226 Mo. l. c. 255.]

We are of opinion the lower court should have denied the peremptory writ. The case is therefore reversed.

Brown and Ragland, GO., concur.

PER CURIAM: — -The foregoing opinion of Small, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: GOODE, J.

license: Public Domain

text:
    THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. JUDSON SANDERSON.
    In Banc,
    December 22, 1919.
    1. OFFICER: Removal. If an official possesses the requisite statutory qualifications, he can be removed from office only for misconduct connected with the performance of official duties, except when some transgression apart from those duties is made by statute a cause for removal.
    2. -: -: Prosecuting Attorney; Disbarment. Suspension-from practice of the law is *hot by statute made a cause for removing a prosecuting attorney from his office.; but the conduct for which he was suspended may be a cause.
    S. -:-:-:-¡Continuance During Appeal. If it be admitted that a judgment of' temporary disbarment remains effective during an appeal,- its effect is only to disable the attorney to practice law during the period of suspension, unless the judgment is sooner reversed, and does not determine the question whether as a result of his suspension he can be ousted from office as prosecuting attorney.

      4. -: --: License. A temporary suspension to practice law is ñ’ot equivalent to a total revocation of a license to practice. The effect of the suspension is to simply deprive him of the use of his, license during the suspension period.
    5. -:-:-: Suspension for Year; Statutory Construction. A temporary suspension of an attorney from the practice of the law for one year, does not subject him to ouster from his office as prosecuting attorney. The statute, does not pronounce any such penalty as a result of a judgment of a temporary suspension, and therefore the question of whether or not such penalty must follow must be determined by construction; and in the construction the fact that the alleged loss or penalty is one of undue and disproportionate hardship must be considered, as must also the fact that the proceeding to oust him is penal in its nature, as is also the disbarment statute, and is not therefore to he extended beyond its terms.

      Quo Warranto.

    Demurrer sustained.

      Frank W. McAllister, Attorney-General, 8. E. Shelley and John T. Gose, Assistant Attorneys-General, for relator.

      Charles W. German of counsel.
    (1) ’Is respondent entitled to practice pending determination of his appeal? There are at l¿ast three cases in this country directly determinative of this question: Walls v. Palmer, 64 Ind. 493; Tyler v. Presley, 72 Cal. 290; MfcMath v. Manns Bros. Boot & Shoe Co., 12 Ky. L. 952, 15 S. W. 879. The decision of the Indiana Court (Walls v. Palmer) was directly approved hv this court in the case of State ex rel. v. Woodson, 128 Mo. 497. This doctrine has not only never heen questioned by this court since the decision in the Woodson case, hut has been repeatedly approved. Ex parte Craig, 130 Mo. 503; State ex rel. v. Hirzel, 137 Mo. 451. (2) The effect of an appeal is not to set aside, or to make inoperative the judgment appealed from, hut merely to review the action of the trial court. The granting of an appeal cannot give to the appellant the right to do something which the judgment or decree forbade him to do. Burgess v. Hitt, 21 Mo. App. 313; Brown v. Curtiss, 155 Mo. App. 3¡76. (3) The decree of suspension operated automatically to disqualify Sanderson as prosecuting attorney. Sec. 1000', R. S. 1909; Brown v. Woods, 2 Okla. 601. See also: 32 Cyc. 619; 29 Cyc. 1380; State v. Allen, 21 Ind. 516; State v. Jones, 19 Ind. 356; Prather v. Hart, 17 Neb. 598.

      R. D. Rodgers and McRcdne, Clark é Rollins for respondent.
    (1) The right to practice law is a most valuable right, which the courts of Missouri and elsewhere fully protect. 2 Thornton on Attorneys at Law, 1165; State ex rel. v. McElhinney, 241 Mr. 592; Austin’s Case, 5 Rawle, (Pa.) 191. (2) A lawyer who is disbarred or suspended by a circuit judge may appeal, and does not have to suffer his punishment until the appellate court says that it was properly inflicted. The judgment is stayed just as it is in actions at law, and the Legislature has so said. Martin on Civil Procedure at Common Law, P'. 324 ; 2 Tidd’s Practice (3 Am. Ed.), p. 1148. See also Appeal and Error, 3 Corpus Juris, p. 1292. This was the rule in both civil and criminal cases. Criminal Law, 17 Corpus Juris 107; Insurance Co. v.' Hotel Co., 37 Wis. 12’5; Kountze v. Omaha Hotel Co., 107 TI. S. 381 ; Meagher v. Vandyk, 2 B. & P. 370,-125 Eng. Rep. 1333. By statute in Missouri the judgment is stayed. Secs. 962, 2042, R. S. 1909; State ex rel. Larew v. Sale, 188 Mo. 493; Ex parte Smith, 193 S. W. 288; State ex rel. v. Bird, 253 Mo. 569: State ex rel. v. Herzel, 137 Mo. 435; State ex rel. v. Kline, 137 Mo. 673; Cuendet v. Henderson, 166* Mo. 657.
   GOODE, J.

This is an original proceeding in quo warranto, instituted by the Attorney-General for the purpose of removing the respondent from the office of Prosecuting Attorney of Callaway County. The case stands for decision upon a demurrer to the information, which need not be set out in full. The reason assigned for the demurrer is that the information states no cause of action, a proposition rested upon a. single fact, which will appear presently. According to the information respondent was elected Prosecuting Attorney of Calla-way County in 1918, and qualified and entered upon the discharge of the duties of the office January 1, 1919. On March twenty-eighth' of that year, he was suspended from the practice of law in Callaway and the other comities of the State for twelve months from that date, by a judgment of the Circuit Court of Audrain County, whither a proceeding to disbar him had been sent by a change of venue from Callaway County. On the same day (March 28, 1919) respondent was granted an appeal from the judgment to this court and gave a duly approved appeal bond in the sum of five hundred dollars; but the Audrain Court made no order to suspend its judgment or stay the execution of it. In view of those and other formal facts, the Attorney-General informs this court that respondent had unlawfully usurped, held and exercised said office since March 28, 1919, and still usurped it at the date the information was filed. Respondent’s position is that as he was granted an appeal and his bond approved, the judgment of the trial court was superseded pending the appeal and he has the right to practice law, at least so far as performing the duties of his office constitute practicing, until the appeal is determined. The judgment against respondent was rendered prior to the Act of 1919, changing in some matters' the statute .relating to the suspension and removal from practice of attorneys; but those modifications in no wav affect the decision of this case. [Laws 1919, p. 151.]

The statute regarding the qualifications a prosecuting attorney must possess is this one: •

“At the general election to. be held in this State in the year A. D. 1880', and every two years thereafter, there shall be elected, in each county of this State, a prosecuting attorney, who shall be a person learned in the law, drdy licensed to practice as an attorney at law in this State and enrolled as such, at least twenty-one years ‘of age,' and shall hold his office for two years, and until his successor is elected, commissioned and qualified.” [R. S. 1909, sec. 1000'.]

The information is silent as to whether respondent had been duly licensed to practice law in this State previous to the judgment of disbarment, and at the date of Ms election; so it is to be presumed he had been. Therefore, he was qualified for the office when elected, which is all the cited section requires if enforced literally. The requirement as to age makes it clear, were it otherwise doubtful, that the primary object of tho law was to. prescribe the qualifications a person must possess when elected prosecuting attorney, to entitle him to the office after he is elected.- The facts stated in the information in the case at bar do not require us to say whether, by a reasonable construction of the language of the controlling statute, the conclusion can be reached, that if a person is elected prosecuting attorney while he holds a license to practice law in the State, the requirement of that qualification for the office is satisfied, as nothing is said about the license continuing in force as a condition on wMch he may retain the place. But it must be borne in mind that this proceeding is penal in its nature and, further, that a disbarment statute is too, and not to b'e extended beyond its terms. [Moutray v. People, 162 Ill. 194; and see State ex rel. Meed v. Week, 129 Mo. 431, a case construing a similar statute.] If the case is brought down to the precise point involved, it becomes unnecessary to decide whether a judgment of permanent disbarment and revocation of the license of a prosecuting attorney, would disqualify him, within the spirit and intention of the statute, to hold Ms position, the essential inquiry being the narrower one as to the effect, in that regard, of a temporary suspension. In this connection we observe that various offenses disqualify the perpetrator to hold office, and others are made causes for forfeiture and-removal; among them are murder, felonious assault, robbery, arson, larceny, fraud or oppression in office, corrupt practices in election, drunkenness, etc. [R. S. 1909, secs. 4504, 6054, 6056, 4411, 4412 and 10203.] There are other sections on the subject and regulating the procedure to be followed, including Sections 10203 et seq., wMch provide for a trial by jury to determine the guilt of the accused. We observe, too, that there are occasional provisions for either suspension or removal of guilty officials, according to the seriousness of the offense; and also for the temporary suspension of certain officers when charged with misconduct or a crime until the charge is tried; for example, clerks of courts of record. [R. S. 1909, secs. 9784, 9785, 9941 and 2689.] More germane to the matter in hand is the law authorizing a circuit or prosecuting attorney in cities of one hundred thousand inhabitants or miore, when indicted for designated violations of the law, to be suspended until the indictment has been disposed of in his favor; whereupon he is to be restored to office and the person appointed to serve in his stead during’ the suspension, ceases to act. [R. S. 1909; secs. 998, 909.] In a proceeding under Article 2, Chapter 90; Revised Statutes 1909 (or Sections 10203' et seq., cited above), to remove a county, city or township officer, if there is a conviction, the defendant is allowed an appeal to this court, pending the appeal is suspended, and if the appeal results in his favor, he is paid for the time for which he was removed. Those statutes are referred to because they show the policy of the State is, that a duly elected or appointed official shall not be deprived of his position except for remissness in the performance of the duties of the office, or conviction of some crime which demonstrates he is unworthy to hold a position of honor or trust. Not only is said policy to be gleaned from statutory enactments, but this court has decided that if an official possesses the requisite qualifications for his position, he can be removed from it only for misconduct connected with the performance of the duties of the office, except when some transgression apart from those duties is made by statute cause for removal; and that rule is general. [State ex rel. v. Sheppard, 192 Mo. 497, 511.] We cite as somewhat pertinent to our present inquiry, a case in which this court prohibited a circuit judge from suspending from practice, temporarily, an attorney who had appealed from the sentence, the court saying that no power was given by the statutes concerning disbarment, or elsewhere, to suspend for any period. [State ex rel. Larew v. Sale, 188 Mo. 493.]

Although numerous causes for removal, including official and non-official misconduct are given in our statutes, suspension from the practice of the law is nowhere made cause for removing a prosecuting attorney; but, of course, the conduct for which he was suspended may be a cause. The information omits to state for what offense the relator was suspended from practice, as it proceeds upon the theory (this being a quo warranto case and not one to remove under the sections cited above) that respondent is no longer qualified to hold tho office in consequence of the judgment alone, the reason for the judgment being immaterial. That he ceased thereby to be an attorney licensed to practice in the State is not asserted in so many words, but necessarily is implied to complete the contention of the relator. Hence, as there is no express requirement of law that a prosecuting attorney must continue, on pain of ouster, to be a licensed practitioner throughout the term for which he was elected, we must determine whether the statute prescribing the qualifications he must have when elected, should be construed to mean a temporary suspension from practice is ground of ouster.

Relator cites and relies on authorities wherein it was said, either by way of dictum or decision, that a judgment of disbarment needs no help from an execution, writ of assistance or other process, but is seifexecuting, and therefore an appeal with bond supersedes nothing of the judgment except the award of costs. [Walls v. Palmer, 64 Ind. 493; Tyler v. Presley, 72 Cal. 291; In re Kirby, 10 S. Dak. 414; Thornton on Attorneys, p. 1237; 6 C. J. 611.]

Other authorities are cited for the proposition that any judgment to prevent the party against whom it is rendered from taking affirmative action of some kind, is not stayed by an appeal with bond; especially if the bond required by statute is intended only to secure the payment of costs; the reason being that in such instances if the judgment were superseded by the appeal or writ of error, the forbidden act might be done and the mischief to be prevented would ensue. [State ex rel. Busch v. Dillon, 96 Mo. 56; State ex rel. w. Denton, 128 Mo. App. 304, 314.] According to this principle it has been held in cases of contested elections, that the party to whom the office is adjudged in the trial court, is entitled to keep it during an appeal. [State ex rel. Craig v. Woodson, 128 Mo. 497, 518; Jayne v. Drorbaugh, 63 Iowa, 711; Powers v. Commonwealth, 110 Ky. 386, 439; People ex rel. v. Stephenson, 98 Mich. 218; Allen v. Robinson, 17 Minn. 113; Fawcett v. Superior Court, 15 Wash. 342.] Even in such cases the form of the bond for appeal is material, as appears from Jayne v. Drorbaugh, and State ex rel. v. Woodson, supra, in both of which the statute required a bond for costs only. There are decisions in this State not easy to reconcile with the doctrine that an appeal or writ of error with bond, supersedes no more than the costs of a case when the judgment operates to prevent affirmative acts. Among them is State ex rel. v. Guinotte, 156 Mo. 513, in which it was held a judgment establishing a will was superseded by an appeal and the administrator appointed in lieu of the executrix named in the will, was entitled to continue the administration as against the executrix until the appeal was determined. In Cuendet v. Henderson, 166 Mr. 657, an appeal with bond from an order of a probate court revoking letters of administration was ruled to supersede the order of revocation so as to permit the administrator, against whom the order of removal was made, to continue his functions. The same ruling was made in an appeal to the circuit court from an order of the probate court revoking a guardianship, and from the order of the circuit court confirming said order, to an appellate court. The judgments of removal were held superseded by the appeals, thereby enabling the guardian to go on with his acts of guardianship. [State ex rel. v. Bird, 253 Mo. 569.] In another case the ruling was that an attorney who had been refused recognition a court until lie was purged of contempt, liad paid a fine and served a jail sentence, was entitled to practice during the pendency of an appeal. [Bird v. Gilbert, 40 Kan. 469.] Cases of that character often turn on relevant statutes rather than on a general principle or rule; and we have noticed those cited, because they have been pressed upon our attention by the respective parties to this litigation, rather than because they throw light on how .it should be decided.

If we accept the doctrine that a judgment of disbarment, and other judgments to restrain affirmative acts, remain effective during an appeal, it comes no closer to the present case than to support the proposition that respondent is disabled to practice law during the period for which he was suspended, unless, the appeal is determined sooner in his favor, and fails to touch the problem of whether, therefore, he can be ousted from office. That is the question for decision and one-for which we know of no precedent; therefore the answer to it must depend on the construction of pertinent statutes, and the spirit of the decisions of this court in cases dealing with disbarments and removals from office.

Concede that the respondent could not lawfully engage in the general practice while suspended, does it follow that he is no longer an attorney licensed to practice in this State, or is the exercise of his license merely suspended? Is a suspension from practice for twelve months equivalent to a total revocation of license ever to practice? How can suspension of an attorney from practice have a greater effect on his license than to suspend the use of.it? If respondent has-been usurp.ing the office he holds since his disbarment, it was his duty to resign the instant judgment went against him, a conclusion which strikes the mind as extreme. We-are of opinion that, at most, the effect of the judgment in question was to take away from respondent the benefit of his license during the period of suspension; not to extinguish it; and that at the end of twelve months, or before, if bis appeal is heard and sustained sooner, he will be entitled to practice without procuring k new license; will be reinstated as an attorney under the license heretofore issued to him. If the judgment took away his license forever, another would need to be obtained, and we know of no statute or rule of law requiring that to be done.

So much for the tecbnical phase of the case. But regardless of that obstacle to accepting relator’s view, we think the disbarment proceeding, even if it worked a total annulment of respondent’s license for the time being, would not be ground for taking away his office —that such result was not within the intention of the Legislature in enacting either the statute prescribing the oualifications of a prosecuting attorney, or those providing for the disbarment of attorneys.

When the law expressly attends a judgment with a particular effect, or imposes- specific penalties upon a transgressor, an argument about the hardships thereby entailed is of no.weight to mitigate the rigor of the consequences. But where the law does not definitely pronounce that a particular loss or penalty shall follow an offense, or a judgment, the question of whether or not it does follow, must be determined by construction; and then the fact that the alleged loss or penalty is one of undue and disproportionate hardship, is to be considered in deciding whether it must be suffered. [2 LewisSuthérland, Stat. Const. (2 Ed.) p. 915.] If respondent is ousted he will lose his office for the remainder of the term, there being no law for the appointment of a temporary successor, whereas the term of suspension must end twelve months from the date of the judgment and may end sooner. A prosecuting attorney might be suspended from) practice for a month, perhaps by a judgment •which a reviewing court would hold erroneous, and if a proceeding in quo warranto could be filed and heard in that interval, he would be deprived of his place and its emoluments, possibly for nearly two years.

We find nothing in the statutes or in the decisions of this State or other states, to compel so harsh a construction. Therefore, without deciding what would be the effect if respondent had been permanently disbarred, we hold that the temporary suspension of him for twelve months does not subject him to ouster from his office or disable him to practice so far as the performance of its duties require.

The demurrer to the information is sustained.

All concur.


author: BOND, C. J.

text:
    HENRY LOUISA STARKS v. JAMES W. LUSK, et al., Appellants.
    In Banc,
    December 22, 1919.
    The majority opinion of the Springfield Court of Appeals, 187 S. W. 586, affirming the judgment in this case, is approved.
    Appeal from Stoddard Circuit Court. — Hon. W. 8. C. Walker, Judge.
    Affirmed.
   BOND, C. J.

This case is fully stated and elaborately discussed in the majority and dissenting opinions of the Springfield Court of Appeals (187:'S. W. 586 et seq).

After a careful examination of the facts as shown in the record, we are satisfied that a correct conclusion was reached in the majority opinion. We therefore approve the majority opinion of the Springfield Court of Appeals.

The judgment of the circuit court is, therefore, affirmed. It is._ so ordered.

All concur, except Goode and Graves, JJ., who dissent; Woodson, J., absent.


author: GOODE, J. WALKER, O. J. GRAVES, J.

text:
    STATE ex rel. J. M. CALDWELL v. EWING COCKRELL, Judge.
    In Banc,
    December 22, 1919.
    1. PROHIBITION: Primary Question: Jurisdiction. In prohibition brought to prohibit a judge from acting, the primary question is whether the subject-matter of the proceeding in which judicial action is apprehended lies within the court’s jurisdiction, or. if it does, whether the particular act to he stayed will exceed the jurisdiction.
    2. CONTEMPT; Authority of Court to Punish. Circuit courts have power to punish, as for contempt, their officers, including their clerks, for disobeying a judicial order, or otherwise obstructing the administration of justice, or offending the dignity of the court. And if the offense is committed in the presence of the court, the offender may be punished summarily.
    3. -: -: Refusal of Clerk to Enter Directed Judgment: Unintelligible Rules. The refusal of the circuit clerk to enter a judgment in accordance with the directions of the judge and the prescribed rules of court is contempt; and the fact that the forms and rules prescribed are unintelligible, and that the rules require the judgments themselves to refer to such forms and to omit the recitals contained in the forms to which reference is made, and that the judgment is not complete unless the words referred to are included, is not an excuse for disobedience, for the intelligibility of the directed entries and the legality of the rules are not questions for the clerk’s decision, • but are judicial questions, to he raised in a case where they are material.
    Being urged by both parties that the court, though it he collateral to the main issue, express its opinion as to the propriety of such rules and reference to other record entries, suggested, by •WALKER, C. J., concurring, that the judgment should itself he complete and its finality made to- depend on its own terms, free from any reference to former orders in the case.

      Seld, by GRAVES, J., concurring, with whom BLAIR and WOOD-SON, JJ., concur, being invited by respondent to rule the point, that a reference in a judgment to rules of court and forms prescribed is not a compliance with the statute, but the judgment rendered should by its own terms be complete.
    4. -: -: Clerk’s Duties: Ministerial. The statute forbids the circuit clerk to alter or impair a record, and expressly commands him to record the judgments, rules, orders and other proceedings of the court; and in doing so he acts ministerially, as the hand of the court, who alone can pronounce the judgment of the law, and has the power to make the records speak his pronouncement in exact truth.
    5. PROHIBITION: To Prohibit Commitment for Contempt. If relator was not in contempt, prohibition to prohibit the inferior court from punishing him for contempt is not the remedy. The court being vested with a judicial discretion, cannot be' prohibited from making a mistake. The usual remedy to relieve against a judgment unlawfully adjudging a person guilty of contempt of court is habeas corpus.

    Prohibitio.n.
    Writ denied.

      A. Mus ser, M. D. Aber, R. M. Robertson, E. C. Littlefield, J. M. Crutchfield, S. J. Caudle, W. L. Chaney, W. E. Suddath and Nick M. Bradley for relator.
    (1) It is beyond the power of any court to make rules or take action which comes into collision with either the organic or statutory law. State ex rel. v. Withrow, 133 Mo..522; Gormerly v. MeGlynn, 84 N. Y. 284;. Works on Courts andl Their Jurisdiction, pi. 177; State ex rel. Partridge v. Lewis, 71 Mo. 170; State v. Underwood, 75 Mo. 230; State ex rel. v. Gideon, 119 Mo. 94; Calhoun v. Crawford, 50 Mo. 458; Purcell v. Railroad, 50 Mo. 504; 4 Am. & Eng. Elncy. Law, 450. (2) Prohibition is the propier remedy when the action of the lower court exhibits evidences of excess of jurisdiction, as well as when exhibiting absolute absence of jurisdiction. State ex rel. v. Withrow, 133 Mjo. 522; Eppo v. People, 20 N. Y. 541;' Ward v. Kelsey, 14 Abb. Pr. 106; State v. Ridgall, 2 Bailey (S. C.) 560; People ex rel. v. Supervisors, 47 Cal. 81. (3). Proceedings and records, of any court of record . . . shall be in the English language, . . . . in a fair, legible character, in words at length, and not abbreviated. Sec. 3860, E. S. 1909. And the above section is mandatory. State v. Wilson, 117 Mo. 570; State v. Scabee, 255 Mo. 270. (4) The form, of decree prescribed by the court in the case of Scott v. Scott, is not in the English language. Stein v. Meyers, 253 111. 199. (5) Cull entries of 4;he orders and proceedings of all courts of record of each day shall be read in open court in the morning of the succeeding day, except, etc. Sec. 3860, R. S. 1909. (6) A judgment must recite and the records show that process was duly served on defendant, and must disclose the existence of every material fact to give the court jurisdiction. 23 Cye. 767.

      James C. Jones for respondent.
    (1) “Every clerk shall record, the judgments, rules, orders and other proceedings of the court.” Sec. 2685, R. S. 1909. (2) “A clerk of a court is a mere ministerial officer, whose duty it is to record only such orders as the'court, may direct.” Kansas City Pump. Co. v. Jones, 126 Mo. App. 540 ; LaOoste v. Eastland, 117 Cal. 673; Robostelli v. Railroad Co., 34 Fed. 507; Ramaley v. Ramaley, 69 Minn. 491. (3) “The Judge has superintendence and control of manner in which the court records are kept. ’ ’ Sec. 3859', R. S. 1909 ; Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 568. (4) “Every court of record shall have power to punish as for criminal contempt persons guilty of . . . willful disobedience of any process or order lawfully issued or made by it.” Sec. 3881, R. S., 1909; Watson v. Williams, 36. Miss. 331.; Krueger V. Williams, 153 S. W. 90S; Territory v. Clancy, 37 Pac. 1110. (5)' “Circuit courts have inherent power, irrespective of statutory enactment, to promulgate and enforce rules.” State ex rel. v. Withrow, 135 Mo. 380. (6) Prohibition does not lie in this case. Morse v. Burckhartt, 87 Mo. 536; State ex rel. v. Mills, 231 Mo. 501; State px xel. v. Broaddus, 234 Mo. 367.
   GOODE, J.

The respondent, Honorable Ewing Cockrell, is Judge of the Circuit Court of -Tohnson County, and of the circuit courts of the other counties in the Seventeenth Judicial Circuit. The relator, J. M. Caldwell, is Clerk of the Circuit Court of Johnson County, and the purpose of this case is to prohibit the respondent, as judge of said court, from going further with a proceeding commenced by .respondent' against relator for a' contempt in refusing to record two specific entries he was ordered by respondent to record, and for recording instead two other and different entries not directed by the court. One of the entries was directed to be recorded in the journal of the court’s proceedings on the fifteenth day of October, 1917, in the case of Laura L. Maupin against Southern Surety Company, No. 5381, which entry was as follows: “Defendant by attorney files answer.” Instead of recording said entry as directed, the clerk recorded the following: . “Answer filed. Now at this day -comes the defendant aforesaid, by its attorney, and files its answer to plaintiff’s petition herein.” The second entry relator refused to record as directed was a judgmient of divorce rendered the ninth day of October, 1917, and to be entered on the journal of the proceedings of the court that day, namely, the judgment in the case of Georgia Scott against Vernon Scott, No. 5356. The entry of judgment to be made as directed by the court was this:

(A) “Plaintiff makes proof of publication in (b) Johnson County Democrat. Evidence submitted. Judgment for plaintiff on grounds [(c) defendant has absented himself without reasonable cause for more than a year] with restoration of former name [(d) Georgia Ann Hightower.]
“The true and complete record herein is the matter under heading Dvn. 2 in Record Book 38, beginning at page 311 incorporated into the above record and entry with Jhe matter contained in the above alphabetically numbered brackets inserted in the correspondingly numbered brackets under the said heading and all written and construed as provided by rules and order’ of court September 3, 1917, as shown in Record Book 38 beginning at page 296.”

(As it will bo necessary to refer again to this form, we have designated it by the letter “A”.)

* Instead of the foregoing, relator recorded the following entry:

“Now at this day comes the plaintiff herein, in person and by her attorney, and files proof of publication of the order of publication of notice of this suit heretofore made in this cause; and said defendant although thereby duly summoned herein more than thirty days before the first day of this term of this court, and being now solemnly called, comes not, but herein makes default, and this cause being now called for hearing is taken up' and submitted to the court, upon the petition, proofs and the evidence of credible witnesses; and the court, after seeing and hearing and duly considering the same, doth find, that said defendant has been duly served with process herein by publication of notice of this suit and all the objects thereof, for four weeks successively in the Johnson County Democrat, a weekly newspaper published in the County of Johnson and State of Missouri, the last insertion thereof being more than thirty days before the, first day of this term of this court; and, that said defendant has failed to appear, answer or -plead herein, but has wholly made default, and plaintiff’s petition stands as confessed by said defendant. The Court further finds that on or about the 15th day of January, 1911, the plaintiff was lawfully married to the defendant, and continued to live with him as his wife from and after said date until the first day of March, 1911; that plaintiff faithfully demeaned herself and discharged all her duties as the Avife of the defendant, and at all times treated him with kindness and affection, hut that defendant, Avholly disregarding his duties as the husband of the plaintiff, did on the first day of March, 1911, xvithout any cause or excuse absent himself from plaintiff and ever .since has and still does so absent himself without any cause whatever for more than one whole year next before the filing of her petition herein. The court further finds that the said plaintiff is now a resident of Johnson County, Missouri, and has lived in the State of. Missouri more than one whole year next before the filing of her petition in this suit; that the plaintiff is a person of good moral character and is the innocent and injured party and entitled to the relief prayed.
“It is therefore ordered, adjudged and decreed by the court here, that the bonds of matrimony contracted by and between the said plaintiff and defendant, be and hereby are, set aside and for naught held; that the said plaintiff be, and hereby is divorced from the said defendant and, that her former name of G-eorgie Ann Hightower be restored to her and that the plaintiff pay the costs of this suit.”

Relator in his petition and suggestions for the writ of prohibition does not specifically admit or deny that he had refused to record the two entries that he was charged in the citation to'him in the contempt proceeding" with refusing to enter. Neither does he admit or deny having recorded- the two different entries he is charged in said citation with having recorded contrary to the court’s command. But he admits that he had refused continually to comply with the orders of respondent, as judge of said court, in respect of the forms in which the proceedings of the court should be recorded and that he had refused to comply with a body of rules the court had prescribed to regulate the recording of entries. For the- clerk’s, disobedience in refusing to record the particular entries set out above and by. the respondent directed, and substituting other entries not directed by the respondent, the proceeding in contempt sought to be prohibited was commenced by a citation issued by respondent to relator, requiring the latter to appear before the former as judge of said Johnson County- Circuit Court and show cause, if any there was, why relator should not be punished for contempt. Thereupon relator applied to this court for the writ of prohibition, and pursuant to his application a preliminary rule was issued, commanding respondent to appear here and show canse, if any he had, why the writ should not he granted.

The petition of relator states that, on September 3, 3917, and during the June term of said circuit court, respondent promulgated a series of rules and orders, and instructed relator, as cleric, to- spread them on the records of the court; which direction relator complied with, and said rules and orders were duly recorded in Volume 38 of said records, commencing at page. 296 and. ending on page 315; that is, on nineteen pages. Said rules and orders are recited in full in relator’s petition, but they are too long to be copied and must be described rather than recited or epitomized. They began with the statement that the object of the court in promulgating them was to procure uniformity, regularity and accuracy in transacting the business of the court and to promote economy, simplicity and efficiency. To this end nearly one hundred forms for entries to be used in recording various proceedings are prescribed: the convening of court; opening the term; excusing petit jurors .and grand jurors; impaneling grand juries; filing of answer by one defendant; filing separate answers for several defendants; of joint and separate answers; the filing of a demurrer to a petition by one defendant, or by several defendants; of a demurrer to an answer by one or several plaintiffs; for an order sustaining a demurrer; ah order for leave to plead; the filing of motions; sustaining motions; overruling motions, etc. etc. Those forms relate to matters occurring in the progress of a case and leading up to the trial. But there are forms prescribed for more im-. portant matters, such as granting a change of venue and for various judgments, to-wit, for the plaintiff by default; for the plaintiff when a jury is waived and the trial is: by the court; when a jury is waived, a court trial and a finding for the defendant; when there is a jury trial and verdict for the plaintiff, or a jury trial and verdict for the. defendant; when a jury trial is started and adjourned from day to day and the trial resumed; a judgment in a divorce case on personal service and default by the defendant; judgment in the like case for the plaintiff with custody of children awarded; when the defendant defaults and divorce is granted on personal service with restoration of the plaintiff’s maiden name; default by defendant and a divorce granted on service by publication with restoration of plaintiff’s former name (it is this form which relator refused to follow in recording the judgment in the case of Georgia Scott against Vernon Scott); judgment in a suit to quiet title on service by publication to unknown defendants; judgment on a plea of “guilty’’ in misdemeanor cases, and on ,the same plea in felony cases, etc. Two forms are prescribed in the rules for entries of minor proceedings happening during the course of a case; a short form, which is to be entered in the journal of the proceedings of the court on the day when the particular act occurred, and the long form, which is not: written out on the records of the day, but is contained among the aforesaid forms prescribed by the rules of court and recorded with the rules in' Book 38 on some page between pages 296 and 315. The Journal entry ordered in the case of Laura L. Maupin against Southern Surety Company: “Defendant by attorney files answer,” is an example of the short form for entries in the course of a case. The full entry of that filing would be found somewhere on one of the aforesaid pages of Volume 38 and would read: “Now at this day comes the defendant by attorney and files his (or her or its) answer to plaintiff’s-petition in this cause.”

At the beginning of the journal record of each day’s proceedings, the clerk is required to write these words:

“The following records are written in accordance with rules and order of Court of Sept. 3', 1917, as shown in Book 38, beginning at page, 296, which rules and orders are made a part of said record of this day. ’ ’

Two forms are likewise provided for the more vital entries of judgments and the like — a brief one called “a representative form” and another called “a full form.” The brief or representative form of a judgment is the one the rules require to be entered on the record of the proceedings. of the day when the judgment is rendered, with a notation stamped after it, which the clerk is required to make in every instance, that the true and complete record of the judgment will be found under a certain heading in Record Book 38 on a stated page. We may illustrate by the representative and the full forms in the Scott divorce-case. The representative form, the one recorded at the time the judgment is pronounced, is shown in the form designated as “A” supra. The full form for said judgment would be found, as is stated in the above representative form A, in Record Book 38, page 311, to-wit:

“Full form-. (Divn. 2) Heading Dvn. 2 (a)
“Now at this day comes the plaintiff herein in person and by attorney, and makes proof of the publication of summons to defendant as required by law, and the defendant, though duly summoned herein, comes not, and though solemnly called, malíes default. And this cause being, now called for hearing,' is taken up, and submitted to the court upon the petition, proofs and the evidence of credible witnesses. And the court after seeing, hearing and duly considering the same, doth find: That defendant has been duly served with process herein by publication of notice of this suit and all the, objects thereof for four weeks successively in (b) a weekly newspaper published and circulated in the County, of Johnson in the State of Missouri, the last insertion thereof being more than thirty days before the first day of this term of this court. That said defendant bas failed to appear, answer, or plead herein, but has wholly made default and plaintiff’s petition stands as confessed by said defendant.
“That plaintiff was lawfully married to defendant; that (c); that plaintiff is the innocent and injured party; that plaintiff’s former name was (d). That plaintiff has resided in the State of Missouri one whole year next before filing of the petition in this cause; it is therefore ordered, adjudged and decreed by the court that the bonds of matrimony contracted and existing by and between plaintiff and defendant be and are hereby set aside and for naught held and that plaintiff be and hereby is divorced from defendant and her former name of Id) be restored to her, and that plaintiff pay the costs of this suit.”

It will be seen that a complete judgment must be made up by reading into the empty spaces in the full form denoted bv the bracketed letters (a), (b), (c), (d) the matter contained after said letters in the representative form. Tn the blank space (a) in the full form must be read the title of the cause, as though it were written there, namely, Georgia Scott v. Vernon. Scott, No. 985fi ; into the blantk space (b) must be read, as though written there, the name of the paper in which notice of publication was* made, to-wit, Johnson County Democrat; into space (c) must be read the cause for which the divorce was granted, to-wit, defendant has absented himself without reasonable cause for more than one year; into space (d) must be> read the former name of the plaintiff, to-wit, Georgia Ann Hightower. If a transcript of the judgment were to be certified, then the matter set out after the bracketed letters in the representative form would be inserted. In other words, the empty full form, to speak paradoxically, is filled lip by incorporating in its blanks by reference to them in the short form, matter contained in the latter, thereby making the blank- general form the complete judgment in a particular case.

Forms for other judgments are similar to the one prepared for a divorce decree, such as was rendered in the Scott case, but some are more intricate, notably the one to quiet title. Near the middle of the aforesaid rules (as spread of record iu Book 38 at pages 296 to 315) and immediately before tbe representative and full forms for judgment, is a long explanation of how they are to be used and understood, which describes the representative and full forms; speaks of the alternatives in them to designate the parties to an action as to whether there are one or more, and the gender of the parties, with appropriate verbs and pronouns'; then states how the complete judgment is to be made up by using the representative and full forms in the manner already described, and that the judgment thus expressed shall constitute the judgment of the court, “the court having regard for and contemplating such full form with the alternatives used and blanks filled as aforesaid as the true judgment, action or proceeding of the court when so directing the same to be expressed and entered in such representative form.” The clerk is then instructed to stamp after each judgment the notation given already as to where the complete record is. (See form of said notation after the Scott judgment, supra.) The clerk is likewise instructed to copy the full form with alternatives and blanks filled from the representative forms in certifying copies of the record. As stated, relator in his petition admits that he refused to observe the court’s said rules and forms, and that ever since their promulgation he has kept the records in’ the customary way; extenuating his disobedience by averring the rules and orders are void and beyond the power of the respondent to promulgate, because they are “vague, unintelligible, contradictory and confusing,” and not in the English language; that to follow them would render it’impossible for relator to perform his duties as clerk, make proper indices' of proceedings or certify copies of judgments and records; that many entries affect titles to real estate and must be recorded in the office of the Recorder of Deeds where the land lies; that if made in the forms prescribed by tile rules it would be impossible to certify them; and so. with transcripts of judgments requested for actions in other States; that relator would be liable on his bond for not keeping the records as required by law; that the property rights and the status of residents of the county and others, and the liberty of persons, depends on judgments being entered in proper form and in the English language as the law requires, without hieroglyphics, symbols, key letters or codes and ■with no abbreviations except those commonly used; and that thus relator and his predecessors have kept the records for many years.

In his return to our preliminary rule, respondent denies the rules and orders aforesaid require the clerk to record the proceedings of the court in any other than the English language, or to use hieroglyphics, keys, symbols or codes, or abbreviations other than such as are in common use, or that the clerk could not keep properly the records, or certify them, if writ-en according to said rules; denies the rules and orders are in contravention of law, avers the clerk is a ministerial officer and] bound to enter the judgments and orders of the court as directed by the judge; avers also that the particular entries ordered to be made in the case of Scott against Scott are in the English language, unabbreviated, and that the judgment entered by the clerk was not the judgment of the court but of the clerk, and therefore the latter officer was cited for contempt.

The citation to relator to show cause against punishment for contempt, is attached to relator’s petition as -an exhibit,' and it recites that on October 15, 191(7, relator was directed by the court to make the aforesaid entry in the Maupin case in conformity with the said general rules,, and that relator violated the direction, and that on October 9, 1917, relator was directed .to record the- judgment in the Scott case in the representative form as we have set it out, but relator, in violation and disregard of the court’s-direction and in defiance of its authority, recorded another entry (that is, a judgment in the form commonly used in divorce cases).

Relator denies in his petition the validity of the entire system of formis of entries prescribed by the rules the' respondent put in force, and affirms that, because of their invalidity, his persistent refusal to use the forms was not a contempt; therefore the proceeding against him should be stayed. This defense of relator’s disregard of the rules, omits to notice the definite charge in the citation that on - specified days of court respondent, as judge, explicitly ordered relator to record two entries which he refused to do, and, instead, recorded different entries, one of these being a judgment the court never gave. The contempt alleged is those acts, the court’s system of rules and forms being only incidentally involved. If the system had not been promulgated, though in that event relator might have disobeyed the court’s orders on the days mentioned, disobedience would have been neither __ more nor less a contempt because of the non-existence of the rules.

The primary question presented in the present case, as in every one brought to prohibit a court from acting, is whether the subject-matter of the proceeding in which judicial action is apprehended, lies within the court’s jurisdiction, or, if it does, whether the particular act to be stayed will exceed the jurisdiction. [State ex rel. Hofman v. Scarritt, 128 Mo. 331, 338.] The circuit courts of this State have jurisdiction of matters of contempt of court by the common law, and also hy a statute conferring it as to some acts of contempt, among which is resistance wilfully offered hy any person to the lawful orders or process of the court. [R. S. 1909, sec. 3881; State ex rel. v. Bland, et al., 189 Mo. 197.] Courts of record of general jurisdiction always have had power to punish as for contempt, their officers, including clerks, for disobeying a judicial order, or otherwise obstructing the administration of justice, or offending the dignity of the court. If the offense -is committed in the presence of the court, by statute and by the common law, the offender mlay be punished summarily. [R. S. 1909, sec. 3883; In re Clark, 208 Mo. 121, 148.]

A contempt like the one relator is charged with was that of a clerk who refused to record the auditing and allowing by a County Commissioners’ Court, of a claim against the county, although twice commanded by the court to make the entry. For this disobedience he was removed from office and another person appointed in his place. Afterward he refused to obey an order of the court to turn over the books and papers of the office to the appointee, and for this refusal was committed to jail. "Whereupon, he procured a writ of habeas corijAis to be discharged. The Supreme Court held the Commissioners’ Court had the power, like other courts, to punish for contempt; and although the prisoner was discharged, this was because he had been sentenced for the refusal, after he was no longer an officer, to surrender the archives; for which offense a special statutory remedy existed and th.e Commissioners ’ Court had no jurisdiction. But on the general subject of the authority of the court over its clerk, the opinion said the power to punish the clerk for contempt in refusing’ to enter the order was unquestionable; that it was not the province of such officer to determine what orders should or should not be entered,- or what claims could he allowed; that if one was allowed without authority of law, there were proper remedies, but none by way of a refusal of the clerk to record the allowance. [Ex parte Thatcher, 7 111. 167.]

A Supreme Court clerk having refused to obey the orders of one of the justices, for the reason that the commission and oath of office of' the justice had not-been filed in the clerk’s office, he was held to be' in contempt, imprisoned and removed from office. [Territory v. Clancy, 7 N. W. 580; and see to the same effect, State v. Simmons, 1 Ark. 265; Matter Contempt Two Clerks, 91 Ga. 113; Northcutt v. State, 158 S. W. (Texas) 1004.]

The position of the relator that his general disregard of' the court’s rules regarding entries constituted no contempt, rests on these alleged facts: that the forms prescribed by the rules were not in the English language, with only such abbreviations as are in common use, and that the forms and rules are unintelligible. This theory, in its total condemnation, brings into view the full scope of the controversy between the judge and the clerk; but as said above, loses sight of the precise -question for decision in the case at bar, which involves no more than whether the relator may be proceeded against for disobeying two particular orders of the court. Before taking up that question, we remark, what is indeed patent, that the short entry in the Maupin case and the “representative” form of judgment in the Scott case ordered to be recorded, are both in the English language, ' as the statutes say all records must be. [R. S. 1909, sec. 3860.] We remark further, that no abbreviation occurs in- either, except the letters “Dvn” after the words “Full Form” and “Heading,” said abbreviations being intended, as we know from the brief of respondent, to indicate the division of the rules in Record Book 38, where the blank full form for the judgment would be found. The statutes, in the section just cited, permit the use in keeping judicial records, of abbreviations commonly used, but no others; and the law requires a judgment, for it to have binding force, to be intelligible. [Freeman, Judgments (4 Ed.), sec. 47; Moody v. Deutsch, 85 Mo. 237, 244.] Whether “Dvn” is an abbreviation commonly used, and whether the judgment directed in the Scott case is intelligible, would be questions for judicial determination if raised in a case where they were material. As regards court rules, it is trhe, as relator contends, that they must not be arbitrary, unreasonable, contrary to a statute^ or of a nature to deprive a party of a legal right. [15 C. J. pp. 902, 903; State ex rel. v. Withrow, 132 Mo. 500, 522; Ibid, 376, 382; Pelz v. Bollinger, 180 Mo. 252, 261.] And, as was decided in the three cases cited, an appellate court will relieve a party injured by an unjust or unlawful rule, if “a very clear case of abuse of discretion” is made out, to quote from the opinion in the Pelz case. We say the questions of the court’s power to use the abbreviation “Dvn,” of the intelligibility, of the ordered entries, and'of the legality of the rules prescribed by respondent, would be for judicial decision in a proper case; but we do not say they would be for decision by the clerk in any case.

It is unnecessary to determine whether or not, if the clerk of a court were ordered by the judge to record a judgment in another than the English tongue, or to record for a judgment a collocation of utterly meaningless words, - “signifying nothing,” the clerk would be justified in refusing. Such an instance is not before us, nor likely ever to be. The entry directed in the M'aupin case is clear, if not complete, and the worst that can be said as to the intelligibility of the one in the Scott case is that persons might- differ as to whether it can be understood.

A more serious objection seems to be that the representative form does not purport to be complete in itself, but refers to another record which, were the point ever raised, might be held, we do not say would be, dehors the case in which the judgment was given.

If we are right in’ those conclusions regarding the entries, can it be held the relator’s disobedience was so plainly proper, so plainly not a contempt, that the court exceeded its jurisdiction in citing him? It is conceivable that a judge might proceed against an officer, or a private person, for contempt in doing something . so palpably innocent as to warrant a superior court’s interference by its writ of prohibition; just as it is conceivable that a court might render a judgment so utterly barren of meaning as, to excuse the clerk from entering it. We say nothing concerning such possibilities. As the matter in hand stands, the question of whether relator was in contempt, is for decision according to the opinion of the circuit court, subject to examination, so far as the law permits, in a superior tribunal. [State ex rel. Hofman v. Scarritt, 128 Mo. 331.]

Pursuing the matter further, perhaps needlessly, we will inquire at this point as to the power of a judge over the entries in the record of the proceedings of his court, and the correlative duties of a clerk. A judge’s supreme responsibility is in respect of the orders and judgments he makes;- no one else can pronounce them, or amend, alter or impair them after they are given, except a court of' review: this is the law by an express statute in which clerks are specifically mentioned. [R. S. 1909, sec. 186-3.] The judge knows best what judgment he gave and should have authority to see that it is entered so the record will express and preserve it precisely as rendered. For this and other reasons, every judge of a court of record in the State is charged with the special duty of examining into and superintending the manner in which the rolls and records of his court are kept, the entries made, and with proceeding against the clerk as for a misdemeanor, if he fails to observe the law. [R. S. 1909, sec. 3859'.] This court has said a judgment is the act of the court, its entry in the record the act of the clerk, the first being judicial, the second ministerial; and that though a judgment derives its force from its rendition by the court, yet one given by a court of record can only be proved by the record. [State ex rel. v. Henderson, 164 Mo. 347.] That being true, the importance of having the record contain exactly the judgment given, is apparent, as is the necessity for the judge’s supervision and control to insure an accurate record. Speaking upon this point the Supreme Court of California said:

“The records of the courts are necessarily subject to the control of the judges, so far as may be essential to the proper administration of justice. . . . Legislation which, could take from its control its records, would leave it impotent for good, and- the just object of ridicule and contempt. The clerk, it is true, is a constitutional officer — not subject to appointment or removal by the court — but subject, in the control of the records, to its orders,” etc. [Houston v. Williams, 13 Cal. 24, 28.]

In People to use of Howard v. Cobb, 10 Colo. App. 478, 483, a clerk and the sureties on his official bond were sued for a deposit of money left with him, and which he entered on the record of the court as having been paid to him as clerk, when in fact the court had made no order for its payment to him in that capacity. The court said, regarding the entry and its effect:

“.An unauthorized entry by the clerk is no part of the records of the court. An order by virtue of which money is paid into court, must come from the court itself, and an- entry by the clerk of money as being in court, no matter in what form or in what hook, without such order is nugatory. . . . Orders, judgments and decrees are made and rendered by the court in the exercise of its judicial functions, and these cannot be delegated.”

In Mayor of Baltimore v.. County Comm’rs, 19 Md. 559, the case was to recover fees paid by the plaintiffs in a criminal case for. which it was asserted the countv was liable. The transcript showed these fees bad been taxed as costs by the clerk of the court where the criminal cases were tried, but did not show they had been allowed by the judge of said court. It was contended the clerk was the hand of the court and every entry must be presumed to have been made bv order or in the presence of the judge. The court said as to this at page 564:

“The clerk is the amanuensis:, it is true, of the court, but he must profess to act by the authority of the judge in making his entries of the proceedings, to give them validity. The awarding of costs is the act of the court,'their taxation or computation, according to die list of fees prescribed, is a duty imposed by law oil the clerk, subject to the supervision of the judge; but the allowance of compensation to an officer of .the court, in addition to the sum allowed by law (and not to exceed a certain sum, as the judge may deem just and proper, is a judicial, not a clerical act, which must be evidenced by some order entered under the authority of the judge, and purporting to be so.”

A text work of merit thus states the rule:

“In recording and making up the proceedings of the court he (viz. the clerk) may be said to act as its (viz. the court’s) amanuensis and subject to its control.”' [11 C. J. 887, citing 7 Cy. L, & P. 219, 223.]

The powers and duties of a clerk are as well settled as those of a judge. -We have seen that the statutes forbid him. to'alter or impair a record, and they expressly command him to “record the judgments, rules, orders and other proceedings of the court” (Italics ours). [R. S. 1909, sec. 2685.] The authorities are uniform in declaring that in performing this duty he acts ministerially and subject to the court’s control. [11 C. J. 887; K. C. Pump Co. v. Jones, 12© Mo. App. l. c. 540; LaCoste v. Eastland, 117 Cal. 673; Ex parte Brown, 166 Ind. 593, 602; Vanderkarr v. State, 51 Ind. 91; Comstock v. Gage, 91 Ill. 328; Baltimore v. Baltimore Co., 19 Md. 554; Hirsh v. Twyford, 40 Okla. 220, 223.] In the case last cited the rule is thus stated:

“The clerk’s duties are ministerial and largely clerical. He is the arm of the court for which he is clerk, and it is his duty to make a record of the proceedings, orders, judgments and decrees of his court, but in so doing he acts as the amanuensis of his court and subject to its control. Record entries are valid, only when made under the judicial sanction of his court."

An appellate court of this State said in the first case cited above:

“A clerk is a mere ministerial officer, the hand of the court, and has- no authority to enter a judgment not pronounced by the court. His entry of a judgment in the records, is designed to stand as a perpetual memorial of the court’s action, but the judgment itself ‘is the judicial act of the. court in pronouncing the sentence of -the law upon the facts in controversy as ascertained by the pleadings and verdict.’ The entry by the clerk of a judgment the court did not render was a nullity.” [126 Mo. App. l. c. 540.]

This excerpt is taken from Ling v. King, 91 111. 573:

“The clerk, in all cases and in all his official acts, whether in term time or in vacation, performs them as a ministerial officer. He so acts in entering up a judgment in term time, under the direction of the judge, who considers and decides.”

It is clear from, the authorities we have cited and quoted from, that relator’s refusal to obey the orders in question, cannot be regarded as necessarily devoid of the elements of contempt.

It may be fair to assume from the pleadings that respondent, if no writ goes, will find relator is guilty and punish him; but as yet no finding has been made, nor a step' taken toward one since the preliminary rule issued. But prohibition is not the mode of relief, if relator was not in contempt; at least unless the alleged acts could not constitute the offense. In the case of State ex rel. Hofman v. Scarritt, supra, that relator sought to prohibit a proceeding for contempt which the respondent Scarritt, as judge, had commenced because of Hofman’s garnishing a debtor of a corporation in the hands of a receiver apj)ointed by the judge. This court decided the circuit court had power to punish Hofman as for contempt on a sufficient showing that one had been committed, saying the question raised called for the exercise of judicial power and the circuit court was vested with authority to decide it in the first instance, the relator having the right to a review under a different writ; meaning, as a citation made in the opinion shows, the writ of habeas corpus. We quote these comments from the opinion:

“The writ cannot rightly he employed to compel a judicial officer, having full jurisdiction over the parties and a cause, to steer his official course by the judgment of some other judge, or to substitute the opinion of another court for his own in dealing with topics committed by the law to his decision. [In re N. Y. Steamship Co. (1895), 155 U. S. 523.]
“The circuit court in the case in hand cannot, on the showing now made, be required to refrain from deciding whether or not Mr. Hofman lias been guilty of a contempt of that court. He has been lawfully brought before the court to answer that charge; and it is not our function, at this stage of the proceedings, to substitute our opinion for that of the circuit judge, to whom the law has given authority to first decide the question now sought to be submitted here. ’ ’ ' [128 Mo. l. c. 338, 339.]

In State ex rel. Morse v. Burckhartt, 87 Mo. 533, 538, in expounding the same doctrine, the court said that if a. matter falls within the jurisdiction of a judicial tribunal, it may be passed upon there and an erroneous decision cannot be prohibited; for a court entrusted with jurisdiction may exercise it according to said court’s judgment and as the oft repeated phrase reads, by deciding wrong as well as by deciding right. In Delaney v. Police Court, 167 Mo. 670, 672, the plaintiff claimed he had been denied a jury trial though entitled to one, and asked prohibition against the enforcement of the judgment. The writ was denied him, with the comment that if all he contended for was con- - ceded, .it amounted only to a wrong ruling, for the police court had jurisdiction to try the case, and while its procedure may have been erroneous, it could not be corrected by prohibition. It sometimes happens that courts, through mistakes of judgment, give decisions contrary to statutes, but if it has ever happened that a writ issued, to prevent the mistake, we do not know the case.

Both parties have expressed .the wish that we decide the validity of the rules of court and the various forms in question. It would be impossible for us to undertake that task, for, as stated, there are numerous forms covering* sundry matters,- and, on an examination some might be deemed good and some bad; and their validity has not been briefed or argued. There is another reason why we should not pass on them: what we would say would carry no authority and might cause embarrassment later if a case arose wherein the legality of some form was involved. Moreover, for aught we know, titles may have been determined, divorces granted and other matters disposed of in the Seventeenth Circuit with the forms of judgment prescribed in the rules, used in writing* up the record. In that event titles to property would be clouded and the status of persons disturbed were we to say the judgments were invalid; whereas were we to take the other view, and say that in our opinion as lawyers they are valid, the statement would be a mere dictum■ A reputable' text-writer on the subject of judgments, has said the forms in use at common law answer so well the requirements of accuracy and brevity that little or nothing can be gained by departing from them. [Freeman,' Judgments (4 Ed.), sec. 48.] That doctrine is sound, we think, and its observance tends to stabalize judgments and to inspire confidence in their stability.

Our preliminary rule is discharged and the writ 'of prohibition denied.

All concur; Walker, G. J., concurs in separate opinion; Graves, J., concurs in the result in separate opinion in which Bl<Hr and Woodson, JJ., concur.

WALKER, O. J.

(concurring). — That the relator is not entitled to the writ prayed for, my learned brother has reasoned well and I concur in Ms conclusion. During the argument, however, both parties, wMle admitting it to be collateral to tbe main issue, urged that we express our opinion as to the propriety of the respond ent’s course in adopting and requiring the use of the forms of record entries, whether interlocutory or final, disclosed by the pleadings. This request will serve to explain, my reason for adding to my concurrence in the majority opinion such suggestions 'as I may offer in regard thereto and, I hope, free it from an air of impertinence.

The forms of orders or interlocutory entries required by respondent are not definite and complete in themselves as to the matters ruled upon; and the forms of the judgments following such orders are lacking in their completeness, and reference is rendered necessary to the former orders to determine not only what the judgments are based upon but their nature and extent as well.

When a judgment is thus entered its validity may possibly be upheld by piecing together the former orders and entries, but this is a course not to be commended. This course, if it does not render a judgment invalid for indefiniteness, which we do not now decide, at least renders it so irregular that instead of terminating it tends to provoke further litigation. A judgment has been tersely termed to be the last word in a judicial controversy (Orchard v. Wright-Dalton Store Co., 225 Mo. 414, 20 Ann. Cas. 1072), or, as has been said with even more precision, it is “the conclusion of the law upon the matter contained in the record” (State ex rel. v. Muench, 217 Mo. 124, 129 Am. St. Rep. 536.) The entries or orders made during the progress of a trial do not of themselves constitute a part of the judgment as they are attempted to be made in the forms prescribed by the respondent, but are intended to record the action of the court as to the particular phase of the case then under consideration and may properly be used by the clerk if necessary to accurately make up his record. The completeness and finality of a judgment, therefore, should be made to depend upon its own terms, free from any reference to former orders in the case, however pertinent when mlade they may be to' the regularity of the proceeding. [State ex rel. Green v. Henderson, 164 Mo. l. c. 359, 86 Am. St. Rep. 618.]

These suggestions but embody in the abstract the requisites of such a judgment as has been recognized in our procedure and approved in our rulings from the beginning' of our jurisprudence. A compliance with them is hallowed by precedent and a departure therefrom cannot be otherwise than fraught with uncertainty if not with danger. An observance, therefore, of the ancient landmarks is in this regard not to be ignored.

GRAVES, J.

(concurring). — -I concur in the result of the majority opinion in this case. I agree to the proposition that a judge of the circuit court may direct his clerk to enter a judgment in a given form, and it thereupon becomes the duty of the clerk to so enter it. This on the theory that the judge controls the records of his court.

But in this case both sides ask that we pass upon the propriety of the judgments now being entered by the respondent. To save future erroneous judgments, this request should be granted, although not strictly within the purview of the instant case. If evil exists, the continuance of it -will work more harm', than a prompt suppression of it. If the judgments being entered are bad, the continuance of the practice will but add to the number of bad judgments. So that in view of the earnest insistance of both sides (including a letter from respondent since the submission of this case, a part of the files under our rule) I think the real question sought to be determined should be determined. In my judgment the learned respondent is in error as to what constitutes a valid judgment under our statutes. The statutes contemplate that the records of the day during which the judgment is entered should show a judgment within the terms of the statute. The judgments presented here .do not conform! to the statutory requirements. So, whilst I agree that respondent should not be prohibited from trying the' clerk for contempt (because respondent can dictate the records of his court), yet I am loath to believe that respondent desires to order irregular and invalid judgments in his cases. On this subject he asks our judgment, and I, personally, feel constrained to express my views now. This to the end that future complications may not be added to past complications. In my judgment the entry of judgment in the divorce case is bad, under our statute. The sooner this is known, the better -it will be' for respondent, and the litigants of his circuit. All such judgments as do not appear in full on the day’s record do not meet the ends of the statute. Reference to rules and other forms, in my view of the law, does not make the judgment of the character in this divorce case good. I would rather hold now that what has gone before is bad, than to wait, and then have to hold that a whole term’s work is bad. By what I have said, I do not mean that there is not sufficient written data, from which a valid' judgment could be entered nunc pro tunc, but I do mean that the judgments here under review do not conform to the statutes. I take it, the respondent has asked for this ruling. For these reasons I can only concur in the result.

Blair and' Woodson, JJ„ concur in these views.