Coy v. Landers

• Decision Date: 04 January 1910
• Citation: 146 Mo. App. 413,125 S.W. 789
• Parties: COY v. LANDERS.
• Court: Missouri Court of Appeals

125 S.W. 789

146 Mo. App. 413

COY v. LANDERS.

St. Louis Court of Appeals. Missouri.

January 4, 1910.

Rehearing Denied February 21, 1910.

1. APPEAL AND ERROR (§ 528)—QUESTIONS PRESENTED FOR REVIEW—MOTION FOR NEW TRIAL.

In general, a motion for a new trial must be incorporated and preserved in the bill of exceptions.

2. APPEAL AND ERROR (§ 706)—RECORD—BILL OF EXCEPTIONS—MOTION FOR NEW TRIAL.

Under Rev. St. 1899, § 866 (Ann. St. 1906, p. 815), providing that a motion for a new trial shall be considered on appeal if the bill of exceptions contains a direction to the clerk to copy the same, and the motion is so copied into the records sent to the appellate court, where the motion is not set forth in the bill of exceptions and there is no direction to the clerk to copy it, the motion and matters referred to therein will not be considered on appeal.

3. EXCEPTIONS, BILL OF (§ 59) — RECORD — CORRECTION IN LOWER COURT.

The circuit court, though it has lost jurisdiction of a cause by appeal, having still jurisdiction over its own records, has power to correct a bill of exceptions nunc pro tunc in any respect essential to make it speak the truth, providing it has sufficient memoranda before it on which to base the order, but such correction after final judgment at a subsequent term, can only be made on evidence furnished by the papers and files in the cause or something of record

or in the minute book or judge's docket, as a basis for the amendment.

4. EXCEPTIONS, BILL OF (§ 59)—AMENDMENT —NUNC PRO TUNC ORDER.

Under Rev. St. 1899, § 866 (Ann. St. 1906, p. 815), providing that a motion for a new trial shall be considered on appeal if the bill of exceptions contains a direction to the clerk to copy the same and the motion is copied into the record sent to the appellate court, the circuit court had no power to amend a bill of exceptions at a subsequent term, after the time to file the same has expired, and several months after the bill was filed, so as to incorporate therein the motion for new trial, the order overruling it, and the exception thereto, by a nunc pro tunc order, on the ground that the same had been inadvertently omitted, where there was no direction in the bill as filed for the incorporation of such motion by the clerk, or other note or memorandum either in the bill or record or files, indicating an intention on the part of the party preparing the bill that it should contain the motion for a new trial.

5. APPEAL AND ERROR (§ 281)—REVIEW—ABSENCE OF MOTION FOR NEW TRIAL.

In the absence of a motion for a new trial the appellate court can examine only the record proper for error.

6. PLEADING (§ 433)—PETITION—SUFFICIENCY AFTER VERDICT.

Where, in an action for injuries to plaintiff by his horse becoming frightened at defendant's automobile, the petition charged that defendant saw the horse at the time he became frightened or by exercising due care could have seen it, but negligently caused his automobile, making a loud and unusual noise, to continue in the direction of the horse at the same dangerous speed at which it was previously run, that on account of the horse becoming frightened at the automobile, and overturning the buggy throwing plaintiff to the ground, plaintiff was injured, etc., the petition was sufficient after verdict to sustain a judgment for plaintiff though it did not expressly allege causal connection between defendant's negligence and the injury, such connection being reasonably inferred from the facts stated.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by William A. Coy against Douglas J. Landers. Judgment for plaintiff, and defendant appeals. Affirmed.

McKeighan & Watts and Wm. R. Gentry, for appellant. O. T. Hamlin, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries inflicted through the alleged negligence of defendant in operating his automobile. The plaintiff recovered and the defendant prosecutes the appeal.

The first question presented for consideration relates to the authority of the court to consider the various matters of exception contained in the bill in the absence of a motion for a new trial appearing therein. After the verdict and judgment were given for the plaintiff, it appears from the record proper that defendant filed his motion for a new trial within due time and that the same was overruled by the court. Thereafter the defendant perfected an appeal to this court and was granted leave to file his bill of exceptions within a time stated after adjournment. Within the time so granted, the defendant prepared and presented his bill of exceptions to the trial judge who signed and sealed the same and ordered it filed of record in the cause. The bill of exceptions thus duly signed and sealed was filed and became a part of the record within the time theretofore granted. After the bill of exceptions had been thus filed and made a part of the record and the time theretofore granted for filing the same had expired, it was discovered that the motion for a new trial was not incorporated therein and there was no call or request contained in the bill for the clerk to copy the same. The bill of exceptions does show, however, that a motion for new trial had been filed and that the same was considered by the court and overruled, to which action of the court in overruling the same an exception was duly preserved. The defendant, having discovered that the motion for a new trial was omitted from the bill of exceptions, after giving due notice to that effect, applied to the circuit court at a subsequent term for an order nunc pro tunc correcting the bill by incorporating the motion for a new trial therein. To this end, the defendant filed his motion at a subsequent term of the circuit court several months after the time for filing the bill had expired and several months after the bill theretofore prepared had been filed and actually made a part of the record. This motion recited in substance that the motion for new trial had been inadvertently omitted from the bill of exceptions and prayed the court to make an order nunc pro tunc incorporating the motion therein. On the hearing of this motion, it was shown that the motion for new trial was actually filed in the cause at the term at which the judgment was given and within four days thereafter, as is required by the statute. It was shown, too, that the motion remained in the files of the cause with the clerk and that it bore the file marks of proper date. The bill of exceptions theretofore filed was introduced and by the bill it was shown that the only reference therein contained to the motion for a new trial is as follows: "And thereafter, on the 18th day of October, 1907, it being one of the days of the September, 1907, term of court, the defendant filed his motion for a new trial, and thereafter, on the 12th day of November, 1907, it being one of the days of the September, 1907, term of said court, the defendant's said motion for new trial was by the court overruled, and to the action of the court in overruling said motion for a new trial, the defendant by his counsel then and there duly objected and excepted and saved his exceptions at the time." On this showing the court entered an order nunc pro tunc incorporating the motion for a new trial in the bill of exceptions theretofore filed, and this, too, notwithstanding no call or request for the clerk to copy the same appeared in the bill. It is now insisted by the plaintiff that the court is not permitted to examine the various matters of exception contained in the bill for the reason the motion for a new trial was not incorporated therein when the bill was filed, no call for the same appeared and for the further reason that the circuit court was without authority to enter the order referred to nunc pro tunc at a term subsequent to that at which final judgment was given.

There can be no doubt of the general proposition that a motion for new trial must be incorporated and preserved in the bill of exceptions. Under the old practice which obtained before our present statute was enacted, it was essential for the bill of exceptions to contain a copy of the motion for new trial, and, in the absence of such appearing therein, the matters of exception occurring on the trial were not open for review in the appellate court. This was true, too, even though the bill disclosed that such a motion was considered, overruled, and an exception preserved to the order of the court thereon. Rotchford v. Creamer, 65 Mo. 48; Stevenson v. Saline Co., 65 Mo. 425. The statute was amended, however, in 1885 (see Acts of 1885, p. 219) so as to authorize the consideration and review of the motion for a new trial even though it were not incorporated in the bill of exceptions if such motion was aptly referred to and called for in the bill. The purport of the provision is that the motion for new trial should be considered on appeal if the bill of exceptions filed contained a direction to the clerk to copy the same and the motion was so copied into the record sent up to the appellate court. See our present statute. Section 866, Rev. St. 1899 (Ann. St. 1906, § 866). Under this statute it has been frequently decided by the court of last resort that where the motion for a new trial is not set forth in the bill of exceptions, and there is no direction to the clerk to copy the same, the motion and matters of exception therein referred to will not be considered on appeal. State v. Griffin, 98 Mo. 672, 12 S. W. 358; Arnold v. Boyer, 108 Mo. 310, 18 S. W. 913; State v. Wray, 124 Mo. 542, 27 S. W. 1100; State v. Revely, 145 Mo. 660, 47 S. W. 787; Franklin Sugar Co. v. Massey, 75 Mo. App. 466; Harper v. Standard Oil Co., 74 Mo. App. 644.

In State v. Revely, 145 Mo. 660, 47 S. W. 787, the Supreme Court ruled under the statute above referred to that the only way in which the motion for a new trial can be made part of the record is by...