Callier v. Chester, P. & Ste. G. Ry. Co.

• Decision Date: 06 June 1911
• Citation: 158 Mo. App. 249,138 S.W. 660
• Parties: CALLIER v. CHESTER, P. & STE. G. RY. CO.
• Court: Missouri Court of Appeals

138 S.W. 660

158 Mo. A. 249

CALLIER v. CHESTER, P. & STE. G. RY. CO.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

Rehearing Denied June 30, 1911.

1. CERTIORARI (§ 66*) — RECORD — REVIEW — PRESUMPTIONS.

The common-law writ of certiorari which prevails in Missouri brings up for review only matters of record; and, where the record is sufficient on its face, the presumption is that the judgment is sustained by competent proof.

2. APPEAL AND ERROR (§§ 511, 646, 659*) — RECORD — DUTY OF APPELLANT.

Appellant must file a bill of exceptions and exhibit a record on appeal to that effect, and, where the record is insufficient, he may suggest a diminution of the record and cause certiorari to issue, or stipulate with appellee as to the corrections to be made or omissions to be supplied in the record.

3. APPEAL AND ERROR (§ 660*) — RECORD — OMISSIONS — CERTIORARI.

Defendant on its appeal was permitted to apply to the trial court for a nunc pro tunc order to supply the omission in the record to disclose the filing of a bill of exceptions. The trial court made the order, and plaintiff appealed therefrom. Both parties suggested a diminution of the record, and certiorari was ordered issued, and the parties waived its issue, and requested permission to file in the Appellate Court as the return plaintiff's printed abstract, including all of the record entries pertaining to the nunc pro tunc order with a bill of exceptions to the ruling amending the record. Plaintiff, in furtherance of his appeal, had printed a complete abstract of the proceedings with a bill of exceptions containing the evidence introduced at the hearing for the nunc pro tunc order and appellee abandoned his appeal. Held, that defendant was estopped from insisting on the technical rule in certiorari, and the court could review the nunc pro tunc order on its merits as disclosed by the bill of exceptions.

4. APPEAL AND ERROR (§ 873*) — ORDERS REVIEWABLE — NUNC PRO TUNC ORDER.

Where appellant obtained from the trial court a nunc pro tunc order supplying an omission in the record so as to show the filing of a bill of exceptions, appellee, saving his exceptions and preserving all of the evidence and filing a motion for a rehearing which was overruled, could require the court on appeal to determine the correctness of the nunc pro tunc order.

5. APPEAL AND ERROR (§ 648*) — CORRECTION OF RECORD — NUNC PRO TUNC ORDERS.

A bill of exceptions was found unsealed in the clerk's office during vacation, but it bore no file mark. The bill had been sent to the clerk by express in time to reach him before the expiration of the time fixed for filing the bill. A paper bearing file marks, but not found among the files of the case, nor in the clerk's office, recited the filing of a bill of exceptions within the time fixed. A carbon copy thereof was found in the files of the case, but on such copy there were no file marks. Held, that under the rule that a nunc pro tunc order may not be made at a subsequent term of court on evidence other than that furnished by the papers and files in the case or something of record, or in the minute book or the judges' docket, the court had no power to enter a nunc pro tunc order supplying an omission in the record on appeal so as to disclose the filing of a bill of exceptions.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Rean A. Callier against the Chester, Perryville & Ste. Genevieve Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Giboney Houck, James F. Green, and Davis & Hardesty, for appellant. Edward Robb and Bradley & McKay, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Upon the record reaching this court, it was discovered that it omitted to disclose the filing of a bill of exceptions, and the hearing of the case was passed to allow defendant an opportunity to proceed in the trial court to the end of supplying the deficiency in the record by obtaining an order nunc pro tunc showing the bill of exceptions to have been filed if such were the fact. As in the view we take the matter must be disposed of by a consideration of the proceedings had with reference to the nunc pro tunc order, the facts concerning it alone will be stated.

It appears a hearing was had in the circuit court on defendant's motion for a nunc pro tunc order to show the filing of the bill of exceptions as of June 25, 1910, and on this hearing the purported bill of exceptions itself and certain records were introduced, together with some oral testimony. The court sustained the motion and made an order amending the record nunc pro tune which recites on its face that the court found from the record and files in the case the bill of exceptions was filed June 25, 1910, within due time in vacation of the court under an order extending the time for filing there until July 1st of that year. Plaintiff objected and excepted to the introduction of oral testimony touching the matter, and in due time filed his motion for a rehearing after the order was made, which was overruled, made up, took, and filed his bill of exceptions on the nunc pro tunc proceeding and duly appealed to this court on that question. After plaintiff's bill of exceptions on the nunc pro tunc proceeding was filed and his appeal perfected from the order amending the record nunc pro tunc, the parties, both plaintiff and defendant, appeared in this court, and the suggestion of diminution of the record was made. The writ of certiorari was ordered issued on this suggestion, but the parties in open court waived its issue and requested permission to file here as the return to that order plaintiff's printed abstract including all of the record entries pertaining to the nunc pro tunc order together with the bill of exceptions taken by plaintiff to the action of the trial court in amending the record nunc pro tunc, and this request was granted by the court. In furtherance of his appeal from the order of the court made nunc pro tunc, plaintiff had printed a complete abstract of all of the proceedings touching that matter showing all of the record entries, together with a complete bill of exceptions containing all of the evidence introduced at the hearing for such order. It was this abstract which the parties requested permission to file as a return to the order awarding the writ of certiorari concerning the issue of which a waiver was entered. The court having granted leave as requested, the parties filed a stipulation in writing here by which it is agreed such printed abstract which contains as well the bill of exceptions taken on the nunc pro tunc proceedings should constitute the return to that order. This return contains, besides the nunc pro tunc order, all of the evidence preserved in the bill of exceptions on which the court made the order, and, when such evidence is examined, there is nothing whatever therein to support the nunc pro tunc order, for it conclusively appears that such order was not made from any entry or memorandum in the record of the court or minutes of the clerk, notations on the judge's docket, nor from papers in the case found in the files. However, the nunc pro tunc order on its face recites that the court found the facts on which the order is based from "the records and papers in the case," and upon this recital it is argued for defendant that this court should not look beyond the nunc pro tunc order itself. It is said on its face the order appears to be complete, and discloses that it was made from "the records and papers in the case," and, further, that the circuit court of Dunklin county being a court possessed of general jurisdiction over the subject-matter, it must be...