Consaul v. Lidell

• Decision Date: 30 September 1841
• Citation: 7 Mo. 250
• Parties: CONSAUL & BARBER, GARNISHEES OF JENKINS, v. LIDELL.
• Court: Missouri Supreme Court

7 Mo. 250

CONSAUL & BARBER, GARNISHEES OF JENKINS,

v.LIDELL.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

HAMILTON, for Appellants. 1st. We hold that the Circuit Court had jurisdiction of the motion for a new trial, and was competent to grant or refuse it, that it was constrained to do one or the other of these two things. Here then was a function without any specific legal remedy. The court was right in coming at the difficulty in some way that justice might be done. All that could reasonably be required was that it should conform its proceedings to peculiar exigencies and circumstances of the case. This was done. The appellee not agreeing with the garnishees as to the evidence presented by them, to remove all doubts the court resorted to the witnesses, whose testimony was spread upon the record, to enable it to pronounce its judgment upon the motion. Tidd's Pr. 914. It is admitted that the more appropriate remedy would have been to permit the facts of the case to be found by a jury upon a venire de novo, and if it be insisted that the facts do not appear, or are not legally upon the record, inasmuch as the garnishees were not guilty of such fault as amounted to negligence, this court will remand the cause for a new trial, rather than suffer the rights of the garnishees to be prejudiced by a mere iuterregnum of the court below. 1 Randolph, 461, and cases there cited; 7 Cowen, 103. But here was an appeal to the equitable powers of the court, for summary relief, and its action is not the subject of a bill of exceptions. 1 Binney, 222; 12 Johns. R. 31; 3 Green, 377; and cases there cited; 6 Mo. R. 208. At common law the was no bill of exceptions; it was first introduced by the statute of Weston 2 (13 Edw.) which appoints no time within which the bill must be drawn up and signed. Tidd's Pr. 863. Our act in express terms requires the exception to be taken during the progress of the trial. The construction given to the statute of Weston, amounts to the same thing. 1 Salk. 288. But though generally taking during the trial, the bill may afterwards be put into form and signed. Tidd's Pr. 863; 9 Wheaton, 657-8. The irregularity, if any, in the proceedings of the court below, was there waived by the appellee. It is also waived here. After an unsuccessful motion to strike out the bill of exceptions, both parties argued the motion of a new trial, upon the facts then spread upon the record. The appellee is therefore estopped from denying that the facts spread upon the record are legally there; he there adopted them, and admits them here, and puts himself upon the law of his case. 3 Greenl. 144, and cases cited. At all events this court is authorized in regarding that part of the case which applies to the instructions refused and given, as disclosed by the bill of exceptions. 11 Wend. 431, 439. The bill of exceptions having been filed in the court below, and returned here under the seal of the court to which the writ of error is directed, has itself become a record, and cannot now as such be disputed. Besides, this court has already manifested a disinclination to interfere with the manner in which the Circuit Court may choose to makeup its own records. 6 Mo. R. 572.

SKINKERS, for Appellee. The appellee moves to set aside the bill of exceptions, or strike it from the records, for the following reasons: 1st. Because the bill was not presented for signature in the progress of the trial, or some note in writing made of the facts by the presiding judge, or by the counsel for the appellants, and submitted to him for correction at that time. On this point see Rev. St. of Mo. p. 464, §§ 20-21; 9 Wheaton, 651; 4 Peters, 107; 1 Salk. 288; Middleburg v. Collins, 9 Johns. R. 346; 3 Cowen, 33.2nd. Because the bill was signed by Judge Mullanphy, who did not preside, and not by Judge Lawless, who did preside on the trial of the cause. Rev. St. of Mo. p. 464, §§ 21-22; 3 Cowen, 33; 4 Peters, 107; 9 Johns. R. 346.3rd. Because if Judge Mullanphy were competent to sign the bill, he could do so only upon a re-examination of all the witnesses, who testified upon the trial, in the presence of both parties, and not upon the affidavits of the witnesses taken by the appellants, without notice before justices of the peace. 4th. Because if it were admissible to receive such affidavits so taken, yet the affidavits of all the witness should have been, but were not taken. 5th. Because in some instances the affidavits of persons other than the witnesses who testified were taken, as to the evidence of those witnesses upon the trial, and no reason assigned for the failure to take the affidavits of the witnesses themselves. 1 Starkie's Ev. 158. 6th. Because these last mentioned deponents did not repeat the words of the witnesses, whose evidence they proved, but merely swore to their substance or effect. 1 Phillip's Ev. 274; 4 T. R. 290.7th. Because they did not swear with precision and positively as to such evidence, but vaguely and according to their belief. 8th. Because the bill of exceptions was improvidently executed; was irregular and against law. 9th. Because the bill of exceptions does not state that all of the evidence given on the trial was contained in the bill. 5 Mo. R., 529; 2 Mo. R. 190; Digest, 464, §§ 20-1-2; 4 Peters, 107, ex-parte Bradstreet; 9 Johns. 346, Medberry v. Collins, &c. 3 Cowen, 32, Campbell v. Schult.

TOMPKINS, J.

This was a suit commenced by Jenkins against Lidell, in the Circuit Court, in which judgment was rendered for Jenkins. Jenkins moved the court to strike from “the record in this cause a bill of exceptions signed by the court for the garnishees, Robert Barbour and Joseph Consaul, as irregularly signed and made a part of the record. This motion was overruled by the court, and the decision of the court overruling such motion was excepted to. The judge of the Circuit Court has made a statement of the case, of which a copy will be taken, as better calculated to explain the case than any statement that I, perhaps, could make; it is as follows: Be it remembered, that this case was tried on the ____ day of ____, of this year (1841), and the motion for a new trial was argued by briefs in writing before the former judge of this court, whose commission expired before he decided the motion, or signed the bill of exceptions, and this bill of exceptions is now presented to the court, with the affidavits of all the witnesses sworn upon the trial, except one, stating what was the testimony given upon the trial; and as to that one whose affidavit is not presented, the affidavit of counsel is presented, showing what was his testimony; and the present judge of this court knowing nothing personally of the evidence given on the trial, or of the proceedings therein, receives the said affidavits to show the facts stated in this bill of exceptions, as the plaintiff does not agree with the garnishees upon the evidence given on the trial, and objects to the judge signing a bill of exceptions in this case upon the affidavits filed, which objections the court overrules, and, at the prayer of the garnishees, signs this bill of exceptions for the garnishees, and orders that the same may be made a part of the record.

The act regulating Practice at Law, provides that “whenever in the progress of any trial in any civil suit depending in any court of record, either party shall except to the opinion of the court, and shall write his exception, and pray the court to sign the same, the person or persons composing the court, or the major part of them, shall, if such bill be true, sign the same; and if they refuse to sign the same on account that it is untrue, they shall certify thereon, under their hands, the cause of such refusal.” See 20th section of 4th article, p. 464, of the Digest of 1835. This section evidently contemplates the exception being taken during the trial of the cause, and signed by the court during such trial, or at least that the exceptions should be allowed during the trial. The 22nd section of the same article contains the only intimation of a case in which time is given; that is, when the judges shall have refused to permit any bill of exceptions, signed by bystanders, to be filed, and shall have certified that it is untrue,...