The State ex rel. Kansas City Light & Power Company v. Trimble

• Decision Date: 22 March 1924
• Docket Number: 24776
• Citation: 258 S.W. 696,303 Mo. 284
• Parties: THE STATE ex rel. KANSAS CITY LIGHT & POWER COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

258 S.W. 696

303 Mo. 284

THE STATE ex rel. KANSAS CITY LIGHT & POWER COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 24776

Supreme Court of Missouri

March 22, 1924

Motion for Rehearing Denied February 11, 1924.

Peremptory writ awarded.

John H. Lucas, William C. Lucas and Ludwick Graves for relator.

(1) The opinion and judgment of the Court of Appeals denies to relator the protection of its property, and its day in court in violation of the guaranties afforded by the Constitution of the United States. Amendment 14, sec. 1, U.S Constitution. (2) The judgment, opinion and order of the Court of Appeals is in conflict with the Constitution of the State of Missouri. (a) In that it deprives relator of the enjoyment of the gains of its own industry, and thus fails of its chief design. Sec. 4, art. 2, Mo. Constitution. (b) In that it closes the court of justice and denies to relator a certain remedy for injury to its property and that right and justice should be administered without sale, denial or delay. Sec. 10, art. 2, Mo. Constitution. (c) In that it is a taking of property without due process of law. Secs. 21 and 30, art 2, Mo. Constitution. (d) In that it deprives relator of the guaranty that the practice in the Supreme Court shall apply in the Court of Appeals. Sec. 15, art. 6, U.S. Constitution. (3) The opinion and judgment are violative of the laws of the State of Missouri governing proceedings in the Supreme, Court of Appeals and other courts of the State. Secs. 1276, 1478 to 1480, 1511 to 1514, R. S. 1919. None of which empower the Court of Appeals to affirm this judgment, but deny such authority. Zumault v. Suburban Belt Ry., 175 Mo. 288, 311; Gordon v. Park, 219 Mo. 600, 608; Sanders v. Chartrand, 158 Mo. 352, 363; Pennington v. Rys. Co., 284 Mo. 21. (4) The opinion and order are contrary to the law governing proceeding and practice; is arbitrary; unsustained by the record submitted, and violative of all matter herein referred to. R. S. 1919, secs. 1478, 1479; Rule 13 of this Court; Central Bank v. Lyda, 191 S.W. 245.

Henry M. Griffith, George H. Kelly, Wm. Buchholz, Isaac B. Kimbrell and Martin J. O'Donnell for respondents.

(1) The abstract of record filed in the Court of Appeals affirmatively asserted that the motion for new trial filed in the cause had never been incorporated in the original bill of exceptions, and hence that court had no jurisdiction on that abstract to review the matters contained in the bill of exceptions. Statute of Westminster 2nd, 13 Edw. I, cap. 31; Cokes Commentary, 2nd Inst. 426; Sec. 7048, R. S. 1919; State ex inf. v. Morgan, 268 Mo. 265; Stevenson v. Saline Co., 65 Mo. 428; State v. Robinson, 79 Mo. 66; Sec. 1512, R. S. 1919; Collins v. Barding, 65 Mo. 496; Cornett v. Lawson, 243 S.W. 95; Brown v. O'Brien, 217 S.W. 600; State v. Revely, 145 Mo. 660. In St. Louis v. Young, 248 Mo. 346, the court condemned the practice followed by relator in the case at bar. Thus, "The rule is that since matters of exception must be in the bill of exceptions, the abstract of the bill should show that matters of exception are still in the bill." (2) The statement in the abstract of the bill of exceptions that "said motion for new trial appears at pages 10-13 of this abstract of the record, is not here duplicated but reference is made thereto," coupled with the reproduction at page 13 of the record proper of the clerk's filing endorsement, and at page 14 of the record proper that "the order overruling said motion for new trial and noting appellant's exception thereto appears at page 91, record 611, of the Circuit Court of Jackson County, at Kansas City," was tantamount to an assertion that the motion for new trial was never incorporated in the original bill of exceptions, and this court and the courts of appeals have on identical records affirmed the judgments without consideration of the matter in the bills of exception. State ex rel. Peet v. Ellison, 196 S.W. 1103; State ex inf. v. Morgan, 268 Mo. 270; State v. Revely, 145 Mo. 660; State v. Leichtman, 146 Mo.App. 295; Harrison v. Punch, 222 S.W. 132; Anderson v. Seward Grain Co., 208 S.W. 632.

Graves, J. All concur; James T. Blair, J., in result.

OPINION

GRAVES

Original action in mandamus. We granted our alternative writ, after due consideration of the matter involved in the application for the writ. It is to be regretted that just a little feeling appears in the briefs. The majority of this court has stricken out short excerpts from a brief. All this, however, does not change the simple facts of the case.

Eliminating from consideration the short excerpts stricken from one brief, by order of a majority of this court, we shall undertake a plain, concise and simple statement of the facts involved in the record now before us.

The relator here seeks to compel the Judges of the Kansas City Court of Appeals to hear its appeal in the case of John G Miller, Respondent v. Kansas City Light & Power Company, Appellant, being case No. 14645 upon their docket. That court, by opinion filed, refused to hear the case upon its merits, for the alleged reason that the abstract of the bill of exceptions did not contain a motion for new trial, and hence the record proper only was before such court. As said, we granted our alternative writ, and therein said to the Court of Appeals:

"NOW, THEREFORE, we being willing that due and speedy justice be done to the said relator, in this behalf, Command you, the said Francis H. Trimble, Ewing C. Bland, and Henry L. Arnold, Judges of said Court of Appeals, that you do, without further delay or excuse, immediately after the receipt of this writ, set aside the order made by you on the 5th day of March, 1923, overruling the motion for a rehearing filed by appellant (relator herein) in a cause between John G. Miller, Respondent, and Kansas City Light and Power Company, Appellant (No. 14645), in said Court of Appeals, and that you make an order sustaining said motion for a rehearing, and that you do proceed with said cause to a decision on the matter contained in the bill of exceptions set out in the printed abstract of the record, statement, assignment of errors and brief, filed in said cause by said appellant, relator herein, or that you show cause, if any you have, before the Supreme Court of the State of Missouri, on the 28th day of May, 1923, why you should not do so."

Return was made to our alternative writ, and the issues are here made up, which includes a stipulation as to some facts. The facts stipulated and pleaded can be shortly stated, and of these there is no controversy. Motion for judgment closed the issues, which of course included the signed stipulation as to facts.

With the application for our writ, and as an exhibit made a part of the application, is the abstract of record in the Kansas City Court of Appeals. The return sets out all of the rules of that court, and reference thereto, where necessary, will be noted. The alleged and agreed facts do not contravene the facts shown by the abstract of record. A supplemental abstract of record was filed, and disallowed by the court. If this becomes material, it can be noted later. We return therefore to the first abstract of record filed in the Court of Appeals. In this we find an abstract of the record proper, and in addition an abstract of the bill of exceptions. In what is and has heretofore been called the record proper, we find at page 10 thereof the following:

"Motion for New Trial.

"On the 28th day of October, 1921, within four days after the rendition of verdict and judgment herein, and during the October, 1921, term of said court, the appellant filed its motion for new trial, in words and figures as follows."

Following this is the motion in full. No question about this situation.

Later we find [258 S.W. 697] at page 17 the heading, "Bill of Exceptions," and at page 108 of said abstract under the heading of "Bill of Exceptions" we find the following recitation of the things in the bill of exceptions:

"And afterward, on the 28th day of October, 1921, during the September, 1921, term of said court and within four days of the rendition of verdict and judgment herein the defendant filed its Motion for New Trial, which said Motion for New Trial appears at pages 10-13 of this abstract of the record, is not here duplicated, but reference is made thereto: which said Motion for New Trial was on the 29th day of November, 1921, at the November term, 1921, of said court, by the court taken up, heard and considered and overruled, said order overruled defendant's Motion for New Trial appearing at page 14 of this record is not here duplicated but reference is made thereto.

"To which action of the court is overruled defendant's said Motion for New Trial the defendant then and there at the time duly excepted and still excepts."

From page 17 to and including page 108 the abstract filed purports to be an abstract of the bill of exceptions.

The supplemental abstract filed after the motion to affirm the judgment shows clearly that the motion for new trial was in fact in the bill of exceptions, and to this bill of exceptions counsel for respondent signed the following:

"We hereby consent that the foregoing is a full, true and correct bill of exceptions on behalf of the defendant herein, and agree that the same may be signed, filed and made a part of the record in this cause."

It is not and cannot be denied that the original bill of exceptions contained the motion for new trial in the usual place, and with the usual exception after it had been overruled by the trial court. This is made clear by the supplemental abstract but to this it was urged that it should not be considered because out of time, and after point had been...