Crawford v. Chicago, R. I. & P. Ry. Co.

Decision Date27 January 1902
Citation66 S.W. 350,171 Mo. 68
CourtMissouri Supreme Court
PartiesCRAWFORD v. CHICAGO, R. I. & P. RY. CO.

Marshall, J., dissenting.

In banc. Action by Thomas Crawford against the Chicago, Rock Island & Pacific Railway Company. Judgment was rendered in favor of plaintiff, but a motion for a new trial was granted, from which plaintiff appealed, but died before the determination thereof. Motion to substitute plaintiff's administrator as party plaintiff. Motion sustained.

James W. Boyd, for appellant. Brown & Dolman, for respondent.

GANTT, J.

1. On the 8th day of October, 1901, — the first day of the present term, — Lewis C. Gabbert, the administrator of Thomas Crawford, whose name appears in the transcript filed as plaintiff and appellant, filed his motion to substitute his name as appellant in lieu of his intestate, who died after taking the appeal in this case; and that motion was denied October 26, 1901, and at the present term. On November 5, 1901, he moved the court to set aside its order denying him the right of substitution, and leave was given to file briefs for and against this motion; and the motion is now submitted on these briefs, and the copies of record of the circuit court filed.

The facts of record are that on December 18, 1900, Thomas Crawford filed his petition in the circuit court of Buchanan county, alleging that by the negligence of defendant he received personal injuries and was damaged in the sum of $2,000. At the January term, 1901, defendant filed its answer, and the said Crawford his reply. The cause came on for trial at the January term, 1901, and resulted in a verdict for said plaintiff, Crawford, for $2,000; and judgment was rendered accordingly on the 12th day of February, 1901. Afterwards, on the 15th of February, 1901, the defendant moved the court for a new trial, alleging among other grounds that the court erred in giving instruction No. 3, asked by plaintiff, for the reason that the same is contrary to, and in violation of, article 2 of the constitution of Missouri; "that the court erred in holding that the amendment of section 28 of article 2 of the constitution of Missouri proposed by the Fortieth general assembly, providing that, in the trial by jury of all civil cases in courts of record, three-fourths of the jury concurring may render a verdict, had been lawfully submitted to the people of the state of Missouri and adopted by them at the general election in the year 1900, and had become a valid provision of the constitution of Missouri, and because said amendment was not submitted to a vote separately, but was included in and voted upon in said election with another amendment with reference to verdicts of juries in courts not of record, and because said amendment was not submitted to a vote of the people of this state in the manner provided by sections 1 and 2 of article 15 of the constitution of Missouri, in that said proposed amendment was not published in a newspaper in each county in the state for four consecutive weeks next preceding the said general election of 1900." Thereafter, on the 6th of March, 1901, and at the same term, this motion was sustained, and a new trial awarded defendant, because the circuit court was of opinion that the constitutional amendment providing that three-fourths of a jury concurring could render a verdict in the case was unconstitutional, and upon the further ground that two separate amendments were submitted together in the ballot as voted for by the people. The grounds of the motion that the verdict was against the weight of the evidence and that the verdict was excessive were withdrawn by mutual consent. To the action of the court in granting a new trial the said plaintiff, Crawford, then and there duly excepted, and then and there, on March 6, 1901, filed his affidavit for appeal from the order granting a new trial, and his appeal was allowed, and a transcript of the judgment and the order allowing the appeal was duly certified to this court by the clerk of the circuit court on the 15th of March, 1901; and the docket fee having been paid March 23, 1901, the said transcript was filed in the office of the clerk of this court. And afterwards, on March 26, 1901, on motion of the said plaintiff, Crawford, the said appeal was advanced to be heard by this court in banc, and the same was set down for argument on April 25, 1901. In the meantime, on March 30, 1901, said plaintiff, Crawford, died; and on April 25, 1901, his death was suggested on the record of this court, and no further step was taken at the April term of this court in the cause. After the death of Thomas Crawford, Lewis C. Gabbert was appointed administrator of his estate in the probate court of Buchanan county, and qualified as such; and thereafter on May 4, 1901, and during the same term at which the judgment had been rendered in favor of said Crawford, and the motion for new trial sustained, the said Lewis C. Gabbert entered his appearance to said action in the circuit court of Buchanan county, and the defendant herein entered its appearance, and said Gabbert was made party plaintiff; and thereupon, by the agreement of both parties, said administrator was granted leave to file his bill of exceptions during the May term, 1901, of said Buchanan circuit court. And afterwards, and during said May term, said administrator filed his bill of exceptions, which was signed by the judge of said court, and made a part of the record of this cause; and thereupon, on October 8, 1901, said administrator moved this court as aforesaid to entitle this cause as "Lewis C. Gabbert, Adm'r of Thos. Crawford, Dec'd, Appellant, vs. The Chicago, Rock Island & Pacific Railroad Company, Respondent," and his right to have the same done presents the question for decision at this time.

The objection by the defendant is that the order of the circuit court purporting to revive the suit in the name of Gabbert, the administrator, was void, and said court was without jurisdiction to do so, because by the allowance of the appeal that court lost jurisdiction of said case, and had no power to permit such revivor. In the determination of this controversy, we must call to our aid certain fundamental principles. Thus, it is settled law in this state that during the whole of the term in which any judicial act is done the proceedings are considered to continue in fieri, and even after a judgment has been rendered the record remains in the breast of the judges of the court, and is therefore subject to amendment or alteration as they may direct, but they cannot, after the lapse of the term, further than by nunc pro tunc entries, make the record speak the exact truth of what did occur. Aull v. Trust Co., 149 Mo. 1, 50 S. W. 289; Rottmann v. Schmucker, 94 Mo. 144, 7 S. W. 117; Caldwell v. Lockridge, 9 Mo. 362; State v. Treasurer, 43 Mo. 228; McCabe v. Lewis, 76 Mo. 296. And it is equally well determined that this power of the court over its own records, and its right to amend, correct, and complete the same, is not affected by the fact that an appeal has been taken from its judgment. Bank v. Allen, 68 Mo. 474; Dekalb Co. v. Hixon, 44 Mo. 341; Jones v. Insurance Co., 55 Mo. 342; Gamble v. Daugherty, 71 Mo. 599. While a different doctrine was announced in Ladd v. Couzins, 35 Mo. 513, that case was subsequently discredited in Gamble v. Daugherty, supra, so that the doctrine is that, though an appeal transfers jurisdiction of the case, still the trial court has full jurisdiction and control of its own record, and may, notwithstanding the appeal, amend, correct, and perfect the same so that it shall show exactly what transpired in said court. State v. Logan, 125 Mo. 22, 28 S. W. 176. Counsel cite Burgess v. O'Donoghue, 90 Mo. 299, 2 S. W. 303; but in that case this court was called upon, not to invade the right of the circuit court to correct during the term any error in its judgment, or to prevent it from correcting by nunc pro tunc order some misprision of its clerk, but to prevent the circuit court from setting aside a sale made at a subsequent term in pursuance of its judgment rendered at a former term, and from which an appeal had been taken without a...

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