Ricketts v. Hart

• Citation: 51 S.W. 825,150 Mo. 64
• Parties: Ricketts, Appellant, v. Hart et al
• Decision Date: 30 May 1899
• Court: United States State Supreme Court of Missouri

51 S.W. 825

150 Mo. 64

Ricketts, Appellant, v. Hart et al

Supreme Court of Missouri

May 30, 1899

Transferred from St. Louis Court of Appeals.

Remanded (with directions).

O. D Jones for appellant.

(1) In February, 1899, a rehearing was granted in this case with order to put it on April term docket. On March 2, 1899 appellant served copy of abstract of the record on the respondents; it is filed and trial asked on it. Appellant has the right to file an abstract here under the statute and the rules of the court. The clause of the abstract showing the filing of the bill of exceptions is made full. This is the only change made. (2) The defendants objected merely to the introduction of evidence on the trial, after filing answers and replies, and the issues were all made. The petition aided by answers and verdict is good as it is. Weaver v. Harlan, 48 Mo.App. 319; Lycett v. Wolf, 45 Mo.App. 489; McDermott v. Claas, 104 Mo. 14; Young v. Sheckle, 103 Mo. 324. It is aided by answers and verdict. Keen v. Munger, 52 Mo.App. 661; Beckman v. Ins. Co., 49 Mo.App. 604; Grace v. Nesbit, 109 Mo. 9; Allen v. Chouteau, 102 Mo. 309.

C. D. Stewart, H. T. Botts and L. F. Cottey for respondents.

(1) Appellants' abstract does not show that leave was taken to file bill of exceptions, nor does it show that a bill of exceptions was filed. Where an appeal is taken by filing in the appellate court a copy of the judgment and the order granting the appeal, accompanied by an abstract of the record, as in this case, the abstract should not only contain the record evidence of the filing of the bill of exceptions, but if the bill be filed out of term, it should also contain a copy of the order granting leave to file it in vacation. If the assignments pertain to matters of exceptions also, or to such matters only, as in this case, then the abstract must show affirmatively that the bill of exceptions was properly filed. The record entry of the filing of the bill of exceptions must be set forth in such abstract. Hohstadt v. Daggs, 49 Mo.App. 157; Mason v. Pennington, 53 Mo.App. 118; Wesby v. Bowers, 58 Mo.App. 419; Hanauer v. Bradley, 64 Mo.App. 661; Hostetter v. Emerson, 64 Mo.App. 672. (2) There must be an entry of record to make a bill of exceptions a part of the record. The further objection is urged to the consideration of the purported bill of exceptions, that there is no record entry showing that the bill was filed at any time. There is nothing in appellants' abstract of the record proper showing that leave was granted to file bill of exceptions or that it was ever filed. Taylor v. Scott, 26 Mo.App. 249; Williams v. Williams, 26 Mo.App. 409; State v. Wilson, 44 Mo.App. 136; McGrew v. Foster, 66 Mo. 30; Pope v. Thompson, 66 Mo. 661; Lumber Co. v. Howard, 76 Mo. 517; Dinwiddie v. Jacobs, 82 Mo. 195; LaFollette v. Thompson, 83 Mo. 199; Roesler v. Bank, 88 Mo. 565; State v. Rolley, 135 Mo. 677. Recitals in the bill of exceptions will not supply the record proper. Walser v. Wear, 128 Mo. 652. (3) The majority opinion of the St. Louis Court of Appeals holds that plaintiff's petition does not state facts sufficient to constitute a cause of action. It finally holds, however, that: "The petition and reply taken together make up the plaintiff's paper case, and are sufficient in our judgment to support a judgment after verdict." The holding is that, "a necessary averment omitted from the petition" may be supplied by the reply. We beg to insist that such ruling is radically wrong. A plaintiff can not abandon his petition and recover upon a cause of action stated in his reply for the first time. The petition must state the plaintiff's cause of action. R. S. 1889, sec. 2039. It is no part of the office of the reply to state a cause of action. R. S. 1889, sec. 2052. In Crawford v. Spencer, 36 Mo.App. 78, it is said: "A party must, under our system of pleading, recover upon the cause of action stated in his petition, and he can not recover upon a cause of action stated in his reply." In Mahoney v. Reed, 40 Mo.App. 99, it is said: "But an allegation in the reply which ought to have been made in the petition is not sufficient and does not cure the defect." See, also, McMahill v. Jenkins, 69 Mo.App. 279; Stepp v. Livingston, 72 Mo.App. 175; Lanitz v. King, 93 Mo. 513; Hill v. Mining Co., 119 Mo. 30; Webb v. Bidwell, 15 Minn. 479; Durbin v. Fisk, 16 Ohio St. 538; Gould's Pleading, sec. 8; Thrush v. Cameron, 21 Mo.App. 397; Newham v. Kenton, 79 Mo. 385.

Gantt C. J., Sherwood, Burgess, Robinson, Brace, Marshall and Valliant, JJ., concurring.

OPINION

In Banc.

Per Curiam.

This cause was heard at the October term, 1898, of this court and an opinion, prepared by Judge Williams, was concurred in by all the members of the court as then constituted.

A rehearing was granted and the cause has been re-argued.

An amended abstract of the record has been filed since the former opinion to meet the objection of respondent that the abstract failed to show the filing of the bill of exceptions. As amended it shows that at the June term, 1897, of the Knox Circuit Court, plaintiff procured leave of the court to file a bill of exceptions in vacation on or before ninety days after June 16, 1897. That afterwards on the nineteenth day of July, 1897, he presented to Judge E. R. McKee, the judge of the Knox Circuit Court, said bill of exceptions and it was duly signed by said judge and ordered filed and made part of the record and was filed and indorsed "filed" on July 20, 1897, in the office of the clerk of the circuit court of Knox county.

This abstract as amended obviates the objection which respondent urged so strenuously on the first hearing. No counter abstract has been filed by respondent and no order requiring the clerk to certify the record in dispute has been asked.

It has been uniformly ruled by this court that the record proper must, if in term time, show the filing of the bill of exceptions, and, if the time be extended in term time, the record proper must show it and the minute of the clerk in vacation must show the filing within the time allowed; that the recital in the bill can not supply that defect, as in the very nature of the case the bill of exceptions is no part of the record until signed and filed by leave of the court. [State v. Harris, 121 Mo. 445, 26 S.W. 558; Walser v. Wear, 128 Mo. 652, 31 S.W. 37.]

Where there is a conflict between the recital of the filing in the bill and the recital in the record proper the latter must and does control.

But while the record proper must show the filing it has never been ruled under our statute permitting the bringing of appeals to this court by certificates and abstracts that the record entries must be set out in full. A narrative of the several steps is held sufficient, as the statute contains within itself the means of protecting this court against imposition by false statements of the record. [McDonald & Co. v. Hoover, 142 Mo. 484, 493; Kincaid v. Griffith, 64 Mo.App. 673; Stewart v. Sparkman, 69 Mo.App. 456.]

As already said, the amended abstract shows the leave to file and the filing by the clerk within the time allowed. Accordingly the motion to dismiss the appeal must be and is overruled.

As to the sufficiency of the pleadings to support the verdict, we approve and adopt the opinion of Judge Williams on that branch of the case and his statement of the case in the following words:

"This case was certified to this court by the St. Louis Court of Appeals. One of the judges of that court dissented from the opinion of the majority, holding that said opinion was in conflict with prior decisions of said court and also of this court. Hence the case comes here for final determination, in accordance with constitutional requirements to that effect.

"The sufficiency of the petition is questioned and it is necessary therefore to set it out in full in this statement. It is as follows:

"'Plaintiff states that on the 29th day of July, A. D. 1896, the defendants by their bond for deed herewith filed, signed by each of them by their initials as in the caption stated sealed, acknowledged and thereby acknowledged themselves to owe and be indebted to him, the plaintiff, in the sum of fourteen hundred dollars, on the sole condition that the defendant H. W. Hart, mentioned in the body of the bond as H. Walter Hart, should, upon the payment to him by the plaintiff of the sum of forty-six hundred dollars at times and on terms as follows, namely thirteen hundred dollars to be paid November 1st, 1896, and twenty-six hundred dollars in the form of an incumbrance then on the land to be assumed by plaintiff, all interest to be paid up to November 1st, 1896, on said incumbrance by defendant Hart, then convey to plaintiff by good and sufficient warranty deed in common form, the following lands, namely, all of the southeast fourth of the southwest fourth and the southwest fourth of the southeast quarter, and forty-four acres where residence is located, all in section ten, township sixty, range twelve west, in Knox county, Missouri, 124 acres more or less. That the balance of the purchase money was to be due and payable when deed was delivered. That plaintiff on the faith of said contract and bond for a deed, made by the defendants as aforesaid on August 13th, 1896, paid defendant Hart the sum of seven hundred dollars, and on November the 9th, 1896, the sum of one hundred dollars, and on November 12th, 1896, the sum of one hundred dollars, making in all the sum of nine hundred dollars. That defendant Hart has failed and refused, and still fails and refuses, to comply with his part of said contract and bond for a deed in this; that he has failed and refused to execute and deliver to plaintiff a good and sufficient warranty deed in...