Bank of North America v. Fletcher

• Decision Date: 04 March 1884
• Citation: 15 Mo.App. 272
• Parties: BANK OF NORTH AMERICA, Appellant, v. T. C. FLETCHER, STOCKHOLDER, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 272

BANK OF NORTH AMERICA, Appellant,

v.T. C. FLETCHER, STOCKHOLDER, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 4, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Appeal dismissed.

HERMANN & REYBURN and W. C. MARSHALL, for the appellant.

JAS. C. CARR and GEO. D. REYNOLDS, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This was a motion for an execution against a stockholder. The court awarded an execution for $95 only, thereby charging the stockholder in respect of a single share of stock. From this ruling the plaintiff has prosecuted an appeal. We are prevented from considering the merits of the controversy by three insuperable difficulties, which relate to the manner of making up the record, and to the time of signing the bill of exceptions and of taking the appeal.

I. The motion is not incorporated into the bill of exceptions. This has always been held to be such a defect in the record as will prevent the terms of the motion from being considered; for a motion in a cause is no part of the record proper, and can only be made matter of record by being certified by the judge in the bill of exceptions. Merchants' Ins. Co. v. Hill, 12 Mo. App. 148, 155. But, as we held in the case just cited, this would not necessarily prevent a review of the proceeding in this court where the terms of the motion were not material, and where the bill of exceptions shows that a motion for an execution against a stockholder was made. In the present case, however, the failure to set out the motion in the bill of exceptions seems to be fatal to our jurisdiction to review the ruling of the court thereon, because the court awarded an execution for $95, in respect of the amount unpaid on one share of stock; and, for aught we can see from the bill of exceptions, the motion did not claim execution for a larger amount. Indeed, the bill of exceptions does not recite that any motion was made at all.

Before dismissing this point, I shall take the liberty, for myself, to say that the rule of practice which we feel bound to follow in this case is, in my opinion, destitute of any foundation in good sense. The supreme court, in the recent case of Allen v. Benton, 79 Mo. 165, have gone very far towards establishing the doctrine that these motions against stockholders are in the nature of independent actions; and if that court can go further, and lay down the rule, that for the purpose of reviewing such proceedings on appeal, the motion, the notice to the stockholder, the subsequent pleadings, and the entry of the order of the court awarding or denying execution, are to be regarded as parts of the record proper, it will simplify proceedings and prevent failures of justice. It seems to me that this record is made up in this respect in a manner which ought to satisfy any sound rule of procedure. The clerk has set out the motion, the notice to the stockholder, the return thereon, the answer of the stockholder, the reply of the plaintiff, and the judgment or order of the court awarding execution, as though they were parts of the record proper. Then follows the bill of exceptions, just as in the record of an ordinary action. But we understand the rule to be as above stated; and we have no jurisdiction to change the settled rules of procedure.

II. The decision of the court awarding execution in respect of one share of stock only, was made at the February term, 1883. The record recites that “the plaintiff duly excepted.” Within four days of the date of this order, the plaintiff filed a motion for new trial. This was overruled at the same term, and the bill of exceptions again recites that “the plaintiff duly excepted.” Then it appears that a bill of exceptions was tendered, signed, and sealed during the succeeding term, on May 3, 1883. We do not know any rule of procedure which permits a bill of exceptions to be signed at a term subsequent to the judgment or decision appealed from, unless by consent of parties appearing of record, or unless the decision is carried over or prolonged to such term by a continuance of the motion for new trial. We have had much difficulty with this question. Givens v. Van Studdiford, 13 Mo. App. 168; Nelson v. Withrow, 14 Mo. App. 270. But in all the cases where it has troubled us, it appeared of record that the motion for new trial had been disposed of at the term at which the bill of exceptions was signed, and we have held that we might presume one continuance for the purpose of saving the rights of the exceptor to a review in this court.

The statute enacts that “such exception may be written and filed at the time or during the term of the court at which it is taken, and not after. All exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions.” Rev. Stats., sect. 3636. Under this statute, the decisions of the supreme court and of this court have been uniform to the effect that a bill of exceptions signed after the lapse of the term at which the judgment was rendered, can not be considered on appeal, except in two cases: 1. Where it has been so signed by consent of the parties, which consent must appear of record. West v. Fowler, 55 Mo. 300; s. c. 59 Mo. 40; Mentzing v. Pac. R. Co., 64 Mo. 25; Robart v. Long, 65 Mo. 223; Baker v. Loring, Id. 527; The State v. Duckworth, 68 Mo. 156; The State v. Broderick, 70 Mo. 622; Howes v. Holmes, 2 Mo. App. 81; Bosley v. Hart, 7 Mo. App. 581. 2. Where the motion for a new trial is continued to a succeeding term, at which the bill of exceptions is signed. Henze v. St. Louis, etc., R. Co., 71 Mo. 636, 644; Riddlesbarger v. McDaniel, 38 Mo. 139; Gray v. Parker, Id. 160; Nelson v. Withrow, 14 Mo. App. 270. In all other cases where the bill of exceptions has been signed after the lapse of the term at which the judgment was rendered, it has been the constant practice of the supreme court and of this court, either to strike out the bill of exceptions on motion ( Wright v. Sheur, 55 Mo. 70), or to disregard it in the determination of the cause on the appeal or writ of error. In addition to the preceding cases, see for illustrations of this statement, Hoffelman v. Frank (52 Mo. 542), Dale v. Patterson (63 Mo. 98), Eau Claire Lumber Co. v. Howard (76 Mo. 517). The case of The State v. Broderick (70 Mo. 622), was, in respect of this point of practice, exactly like the case at bar, except that that was a criminal case, in which the defendant had been convicted of a felony, and sentenced to a term in the penitentiary. There, the motion for a new trial was overruled at the March term, and the bill of exceptions was not filed until the May term. It was held that the bill of exceptions could not be considered. It was also held, that in order to determine whether a bill of exceptions is filed after the term, the court would take judicial notice of the time fixed by the statute for holding the court. Applying the rule established by this decision to the present case, we must notice judicially that, the present bill of exceptions, according to its recitals, having been tendered, signed, and sealed on the third day of May, 1883, was tendered, signed, and sealed at the April term, 1883, whereas, the motion for new trial, according to the recitals of the bill of exceptions, was overruled on March 16, 1883, which must have been at a term prior to the April term, 1883. It follows that the bill of exceptions can not be considered for any purpose connected with the merits of the appeal, though, of course, its recitals are looked to for the purpose of ascertaining whether it can be regarded as a bill of exceptions at all. It is here proper to observe that the minute entries, which the clerk has copied into the transcript, show that the motion for new trial was filed on March 1, 1883, and during the February term; that there was a general order on the last day of that term, continuing all motions, demurrers, and causes undisposed...