Jones v. Christian

Decision Date08 February 1887
PartiesMARGARET JONES, Plaintiff in Error, v. JOHN CHRISTIAN ET AL., ADMINISTRATORS OF EDWARD JONES, DECEASED, Defendants in Error.
CourtKansas Court of Appeals

ERROR to Adair Circuit Court, HON. ANDREW ELLISON, Judge.

Affirmed.

The case is stated in the opinion.

JAMES M. DEFRANCE, for the plaintiff in error.

A. D RISDON, with SEARS & GUTHRIE, for the defendants in error.

I. Said alleged evidence should be stricken from the transcript. (1) Because the reference thereto and call for it in the bill of exceeptions is too loose and indefinite and does not identify it with sufficient certainty. Morrison v. Lehew, 17 Mo.App. 633; Lockard v. Railroad, 21 Central Law Journal, 412 and note; S. C., 23 N.W. 653; Railroad v. Wagner, 19 Kan. 335; United States v. Gamble, 10 Mo. 394; City of Jefferson v Opel, 67 Mo. 394; Laws of Missouri, 1885, Acts, page 219, sect. 1, amending section 3776, Rev. Stat., 1879. Expressio unius, exclusio alterius. Lowry v. Carver (Indiana), 2 Western Reporter, 267; Parks v. Council Bluffs Ins. Co. (Iowa, June 10, 1886), 28 N.W. 424; Williams v. Williams (Iowa, April 7, 1886), 27 N.W 472. (2) Because there was no order of court allowing any bill of exceptions.

PHILIPS P. J.

The errors assigned for a reversal of the judgment of the circuit court are such as involve an examination of all the evidence introduced at the trial by the plaintiff. This evidence can only be brought to our attention for review when properly preserved in the bill of exceptions. The bill of exceptions, as first certified to this court in the transcript, contains what purports to have been the evidence admitted at the trial. On suggestion of defendants in error, on motion, that the transcript, in this respect, was incorrect, on order of this court, the clerk of the circuit court has sent here the original bill of exceptions. This bill is what is commonly known as " a skeleton bill of exceptions." It does not set out the evidence, but it is as follows: " The plaintiff to sustain the issues on her part introduced the following evidence (here copy the evidence of Sanford Snyder, then the depositions of Cora Stoneburner, and Peter Stoneburner, then the evidence given by John Richey, John L. Porter, H. W. Snyder and Henry Drake)."

It is observable, in passing, that the bill does not even direct the clerk to insert the designated evidence. The question then arises: how could the clerk insert this evidence, especially that portion of it delivered orally at the trial? And how is this court to know that the clerk has properly and fully presented this evidence?

We find among the papers pertaining to this case an affidavit filed herein on the tenth day of this month, by defendant's counsel, explaining how the bill of exceptions was made up in the manner it was, and stating that he furnished, after the approval thereof by the trial judge, the minutes of the oral testimony of the witnesses, to the clerk for insertion in the bill of exceptions. But we cannot regard this affidavit. It is no part of the record herein. Sturdivant v. Watkins, 47 Mo. 177; Baker v. Loring, 65 Mo. 527; State v. Treace, 66 Mo. 124.

We must, therefore, look alone to the original bill of exceptions to determine whether the evidence is properly before us.

A brief review of the decisions of the Supreme Court seems to be demanded, in order to a clear understanding of this question of practice.

In United States v. Gamble and Bates (10 Mo. 457), it was held that a motion for new trial was no part of the record until made so by being inserted in the bill of exceptions. Scott, Judge, said: " Although a motion is set out by the clerk in the record, that does not make it a part of it. A clerk cannot make any thing a record which he pleases to write in the order book, or sees fit to copy into the record. A motion is no part of the record, and it can only be made so by incorporating it in the bill of exceptions."

In State v. Shehane (25 Mo. 565), it was held that: " Instructions should regularly be incorporated in the bill of exceptions. Although they may appear among the papers in the cause and be spread upon the transscript, they will be disregarded, unless they form a part of the bill of exceptions."

The case of Jefferson City v. Opel (67 Mo. 394), presents the question here involved. The bill of exceptions was a skeleton bill. It directed the clerk, as (" here insert" ) and the like. Henry, Judge, said, inter alia: " Nothing but the record proper is a part of the record, until made so by being copied into the bill of exceptions. A mere reference to motions and instructions in the bill of exceptions by citing the page on which they appear, or what the clerk pleases to certify as the record, will not suffice. The bill of exceptions is prepared and signed before the record is made up, and the signature of the judge who tries a cause, to a bill of exceptions, which, instead of containing the motion passed upon by the court, has memoranda for the clerk, such as ‘ here insert it,’ or ‘ see page of the record,’ is necessarily a mere skeleton. Nothing but a bill of exceptions can make motions a part of the record, and unless incorporated bodily in the bill, they cannot be noticed by this court."

In the later case of State v. Van Zant (71 Mo. 554), it was held that a bill of exceptions, not bodily incorporating the instructions, but directing the clerk to insert same, was sufficient to authorize the clerk to set them out in the transcript, provided, they were called for in the bill " in such manner as certainly to identify them when the clerk comes to perform the duty imposed upon him by section 1030, Revised Statutes, of writing said bill out at full length."

It was perhaps, with the last two decisions in his mind that Rombauer, J., wrote the opinion in Morrison v. Lehew (17 Mo.App. 633). The bill of exceptions in that case, as filed, did not set out the evidence, but contained the direction " here insert," etc. It was held to be insufficient to authorize the clerk to insert the testimony delivered by witnesses at the trial. The learned judge further observed: " Bills of exceptions are sometimes, by consent of parties, signed in a skeleton form, and afterwards filled out by the clerk...

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