Craig v. St. Louis & S. F. Ry. Co.

• Decision Date: 28 February 1913
• Citation: 154 S.W. 77,248 Mo. 270
• Court: Missouri Supreme Court
• Parties: CRAIG v. ST. LOUIS & S. F. RY. CO.

154 S.W. 77

248 Mo. 270

CRAIG v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

1. APPEAL AND ERROR (§ 554)—MOTIONS TO AFFIRM—BILL OF EXCEPTIONS—FILING.

A motion to affirm will not be sustained merely for a failure to file a bill of exceptions, if the record proper is before the court and can be reviewed to see if the judgment is one that could be entered on the pleadings.

2. APPEAL AND ERROR (§ 621)—BILLS OF EXCEPTION —TIME OF FILING—STATUTES.

Laws 1911, p. 139, relating to time of filing bills of exceptions, only applies to cases where there was a right existing to file a bill of exceptions when the act took effect.

3. STATUTES (§ 184)—CONSTRUCTION—LEGISLATIVE INTENT.

In construing a legislative act the previous law and the evils the present act was intended to meet must be considered.

Appeal from Circuit Court, Franklin County; R. Steele Ryors, Judge.

Action by Nannie Craig, administratrix of the estate of George Craig, deceased, against the St. Louis & San Francisco Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Jno. W. Booth, of Washington, and Morrow & Kelly, of St. Louis, for appellant. W. F. Evans and E. T. Miller, both of St. Louis, and Jas. Booth, of Pacific, for respondent.

GRAVES, J.

December 22, 1907, one George Craig was struck and killed by one of the defendant's trains near the town of Moselle in Franklin county, Mo. Said Craig was unmarried and left as his lawful heirs his mother, Nannie Craig, the present administratrix of his estate and plaintiff in the case, and some brothers and sisters. In view of the law, details of the unfortunate accident resulting in George Craig's death need not be reviewed. Whether these details would reflect upon deceased or the railway becomes a matter wholly immaterial here. Suffice it to say that the mother, Nannie Craig, was made administratrix of the estate, and in that capacity on July 30, 1908, filed her petition charging the defendant with the negligent killing of the said George Craig. This petition was returnable to the following November term of said court, at which time the issues were duly made by answer and reply; but the cause was continued to the following March term in the year 1909. At this March term, 1909, the plaintiff filed an amended petition. The issues were again made up by answer and reply and the cause tried at said March term. March 13, 1909, verdict was returned for the defendant. March 16th, being a day of said March term, a motion for new trial was filed by plaintiff, and this motion was overruled on April 5, 1909, but during the said March term. On the same day plaintiff took the appeal in this case. The record concerning further matters had better speak for itself, and we quote from the plaintiff's abstract before us thus:

"Thereafter, on the said 5th day of April, 1909, it being one of the days of the March term, 1909, of said court, the plaintiff deposited $10 as a docket fee in the Supreme Court and filed its application and affidavit in due form praying an appeal of said cause to the Supreme Court of Missouri. And on the said 5th day of April, 1909, and at the March term, 1909, of said court, the court, by order duly entered of record in said cause, duly granted the plaintiff an appeal of said cause to the Supreme Court of Missouri.

"And therefore, on the 19th day of July, 1911, and at the July term, 1911, of said court, and within the time allowed by law, the plaintiff presented her bill of exceptions herein, and said bill of exceptions was thereupon signed and sealed by the judge of said court, and, by an order of court duly entered of record in said cause, approved, allowed, and filed, and made a part of the record in said cause.

"On the 20th day of September, 1909, and within the time allowed by law, the appellant perfected her appeal herein by filing in this court certified copies of judgment and order granting appeal."

It is the second paragraph of the quotation above that gives rise to the trouble in the case. Defendant has filed its motion to affirm because no bill of exceptions was filed within the time prescribed by law. This motion and the suggestion both for and contra were taken with the cause. The motion at least raises the question as to whether or not the bill of exceptions is here for consideration. With the view we entertain as to the law this sufficiently states the case.

I. Going to the record before us, it appears the defendant has moved to affirm because no bill of exceptions was filed within time. As a motion to affirm, it should not be sustained on the ground alleged. It does appear from the abstract of record before us that an appeal was taken in proper time, and that appeal lodged in this court within proper time. The abstract before us properly abstracts the record proper, so far as the pleadings and the judgment are of consequence. In such state of the record it is our duty to say whether or not the judgment entered is one which could have been entered under the pleadings. If under the pleadings the judgment cannot stand, then it would be our duty to reverse the judgment, although no bill of exceptions had been filed. So that we say that a motion to affirm does not have to be sustained simply because an appellant fails to file a bill of exceptions, because if the record proper is before us, and such record shows that the judgment entered is not one which could be entered under the pleadings, then we would have to reverse the case although there was no bill of exceptions. We have often so ruled on motions to dismiss an appeal, and we need not further reiterate the reasons. We have always held that such a motion will call to our attention the fact as to whether or not we have before us the bill of exceptions or only the record proper. So in this case the motion to affirm (grounded as it is) is such as to present to us the question whether we shall consider the whole record (which includes the record proper and the bill of exceptions) or the record proper only. It might be further said that the motion would also call our attention to the fact that there was no error in the record proper. But the real question in this case is whether or not there is a bill of exceptions here for our consideration, and to that question we next proceed.

II. It will be noticed, from the quotation made from the abstract of record in our statement, that no bill of exceptions was filed at the March term, 1909, of the Franklin county circuit court. Nor does the abstract show any leave to file a bill of exceptions at a later date. The law then governing the filing of bills of exceptions required them to be filed during the trial term, or at some later date properly fixed by order of the court. The abstract fails to show an order for the filing of a bill of exceptions at a later date, and therefore fails to disclose any reason for the filing of such bill of exceptions at any time save at the trial term. This seems to be conceded, but plaintiff claims she had the right to file her bill of exceptions two years later, as she did, and that this court must consider it when, so filed, because of the provision of an act of the Legislature passed in 1911 (Laws of 1911, pp. 139, 140), and this is the sole contention in the case. This act of 1911 repealed section 2029 of R. S. 1909, and enacted in lieu thereof a new section, which reads: "Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such...