Brown & Biglow v. Heier

• Decision Date: 08 May 1917
• Docket Number: No. 14584.,No. 15547.,15547.,14584.
• Citation: 194 S.W. 1070
• Court: Missouri Court of Appeals
• Parties: BROWN & BIGLOW v. HEIER (two cases).

194 S.W. 1070

BROWN & BIGLOW v. HEIER (two cases).

No. 15547.

No. 14584.

St. Louis Court of Appeals. Missouri.

May 8, 1917.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Brown & Biglow against Henry Heier. From denial of a motion by plaintiff, it appeals, and from judgment rendered on the merits in favor of plaintiff, defendant appeals. Appeals consolidated by order of court. Affirmed on plaintiff's appeal, and on defendant's appeal reversed and remanded.

Bishop & Cobbs and Harry A. Frank, all of St. Louis, for appellant. Edward W. Foristel, of St. Louis, for respondent.

BECKER, J.

This action is to recover for goods, wares, and merchandise sold and delivered by plaintiff to defendant, and by defendant received and not paid for.

This case originated in the justice court where a paper, containing the items of the account sued on, was filed. On appeal the case was tried de novo by the judge without the intervention of a jury. No declarations of law were asked for, nor was a finding of facts requested by either party to the suit. Judgment was rendered for plaintiff in the sum of $360. Defendant appeals. It is undisputed that defendant bought certain goods of plaintiff and signed written orders (hereinafter referred to as the contracts) for same, and that the goods were delivered by plaintiff and accepted by defendant. It appears that the contracts, though produced in court at the trial, and identified by several witnesses and admitted by defendant himself to have been the contracts signed by him, were never, so far as the record shows, formally introduced in evidence, and consequently the said contracts are nowhere set out in the record.

After the appeal had been taken and the abstract of the record for use in this court was presented to plaintiff's counsel, only then did they realize the fact that the said contracts had not been formally introduced in evidence. Plaintiff thereupon, in the circuit court, filed a "motion to correct and amend the bill of exceptions nunc pro tunc," asking therein that the bill of exceptions be amended and corrected so as to show that the contracts, and also certain letters, had in point of fact been formally introduced in evidence. This motion, on a hearing, was overruled and the plaintiff thereupon took an appeal therein to this court, which appeal is case No. 15547, while the defendant's appeal, supra, from the judgment rendered in the case on the merits, in favor of plaintiff, is case No. 14584. On proper motion the said appeals were by order of this court consolidated.

No. 15547.

We will take up first plaintiff's appeal from the action of the trial court in overruling plaintiff's motion to correct and amend the bill of exceptions nunc pro tunc. The facts pertinent for a determination of this motion may be stated thus:

The bill of exceptions gotten up by the stenographer transcribing his notes taken at the time of the trial does not show any formal offer made to introduce in evidence or make exhibits of the contracts in question. The bill of exceptions does, however, show that the contracts were identified by several witnesses, and that the contracts were considered as part of the evidence by the court in determining the cause, as shown by the following language in a written memorandum handed down by the trial judge in the case:

"Judgment ought to go for the plaintiff for two reasons: (1) By the weight of the testimony in the case the contract offered by the plaintiff is the one the parties in fact made."

The trial judge, however, as the record shows, states that he did not have any recollection concerning the offer or failure to offer the contracts, and that it was probably true that in his memorandum he had assumed the contracts were offered in evidence when in fact they were not formally offered, and this for the reason that the stenographer's transcript does not show that a formal offer had been made, though it was evidently true that the case had been tried and submitted as though the contracts were properly before the court. Should the said motion, under this state of facts, then, have been sustained?

When signed by the judge and duly filed in the cause, a bill of exceptions becomes a part of the record, and thereafter can only be changed or corrected by a nunc pro tunc entry. It has been uniformly held by the appellate courts of our state that in order...