Fenn v. Reber

• Decision Date: 29 November 1910
• Citation: 153 Mo. App. 219,132 S.W. 627
• Parties: FENN v. REBER.
• Court: Missouri Court of Appeals

132 S.W. 627

153 Mo. App. 219

FENN v. REBER.

St. Louis Court of Appeals. Missouri.

November 29, 1910.

1. EXCEPTIONS, BILL OF (§ 53)—SETTLEMENT —COMPELLING ALLOWANCE OR SETTLEMENT.

The act of a judge of a court of general jurisdiction in allowing exceptions and signing the bill preserving them, while a judicial act to be performed by a judge under the sanction of his oath of office, is under the control of a superior court by mandamus, not to the extent of advising the judge how he shall act, but only of compelling some action in the matter; the mere act of signing and approving the bill of exceptions being a ministerial act.

2. COURTS (§ 50)—ORGANIZATION—DIVISIONS OF COURT—STATUTES.

Under Rev. St. 1909, § 4152, relating to the courts of the Eighth circuit of the city of St. Louis, the division to which a cause has been assigned is as exclusive in its jurisdiction as if it were the whole court.

3. EVIDENCE (§ 41)—JUDICIAL NOTICE—EXISTENCE, ORGANIZATION AND TERMS OF COURT.

The appellate court may take judicial notice of what judges were in office in a circuit court under its jurisdiction, but in the absence of a showing in the record, may not take judicial notice of the length of time a particular judge was assigned to a division of the court, nor which of a number of judges was acting in a particular division.

4. EVIDENCE (§ 41)—JUDICIAL NOTICE—ELECTIONS TO OFFICE.

The appellate court will take judicial notice that a particular judge of the circuit court within its jurisdiction was elected for a term of office which has not expired.

5. EXCEPTIONS, BILL OF (§ 1)—NATURE AND PURPOSE.

The object and purpose of a bill of exceptions is to make that a matter of record which otherwise would not be so.

6. COURTS (§ 112)—RECORDS—WHAT CONSTITUTES RECORDS.

Nothing which is not matter of record by law can become matter of record unless ordered to be made so by the judge then holding the court and presiding therein, in whom rests the sole power over the court's records.

7. EXCEPTIONS, BILL OF (§ 32)—SIGNED BY SUCCEEDING OR ACTING JUDGE—STATUTORY PROVISIONS—"SHALL GO OUT OF OFFICE."

The plaintiff took an appeal from the judgment of the circuit court, and his bill of exceptions was signed by a judge other than the one before whom the case was heard, but who was then sitting in the division in which the action had been tried. Rev. St. 1909, § 4149, relating to the circuit court of the Eighth circuit, provides that the judges of that circuit may rotate in service between the civil and criminal divisions, and by section 4152 the court was specially empowered to make all rules which its peculiar organization should require. By Rev. St. 1909, § 2032, it is provided that where the judge who heard the case "shall go out of office" before signing the bill of exceptions, it shall be signed by the succeeding or acting judge of the court in which the case was heard. Held, that the words "shall go out of office" do not mean that the judge's term of office must have expired, but mean only that he "shall go out of office" so far as relates to presiding in that particular division of court, and therefore a bill of exceptions signed by the then acting judge of that division is a bill signed by the proper judge.

8. EXECUTORS AND ADMINISTRATORS (§ 256)— CLAIMS AGAINST ESTATE—REVIEW—DEFENSES NOT RAISED BELOW.

Plaintiff filed his claim against a decedent's estate for legal services rendered "as per agreement of 20 per cent.," but did not file the contract as required by Rev. St. 1909, § 194, or otherwise show its nature or form. On appeal the circuit court gave judgment against him after trial to a jury. Held, that plaintiff could not contend, on a future appeal, that the execution of the contract not having been denied under oath, as required by Rev. St. 1909, § 1985, the defendant could not contest it at the trial, since no written contract was filed or even alleged, and even had it been, the proceedings at the trial showing the contract to have been signed by both parties, section 1985 was not applicable.

9. PLEADING (§ 291) — VERIFICATION—OMISSION—EFFECT—WRITTEN INSTRUMENT.

In a suit on a written instrument, the failure of defendant to deny its execution under oath does not preclude all attack on it, but it may be resisted on the ground of illegality, failure of consideration, fraud, or even that it never existed.

10. APPEAL AND ERROR (§ 173)—DEFENSES NOT RAISED AT TRIAL.

Where proper objections and exceptions were not made at the trial, but in some cases not until motion for new trial, and as to others until the filing of briefs in the appellate court, they cannot be considered on appeal.

11. APPEAL AND ERROR (§ 1005)—QUESTIONS OF FACT—VERDICT—APPEAL OF TRIAL COURT —REVIEW.

A verdict, supported by substantial evidence, and the approval of the trial judge, is conclusive on appeal.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Bert F. Fenn against Dora Reber, administratrix. Judgment for defendant in part, and plaintiff appeals. Affirmed.

T. E. Francis, John M. Dickson, and Bert F. Fenn, for appellant. Theodore C. Eggers and Harmon J. Bliss, for respondent.

REYNOLDS, P. J.

Plaintiff below, appellant here, filed an account as a claim against the respondent, administratrix, in the probate court of the city of St. Louis, the account being for $371.20, for "legal services rendered in collecting eighteen hundred and fifty-six dollars and fifty-seven cents ($1,856.57) from the Pittsburg Life & Trust Company as per agreement of twenty per cent. (20 per cent.)," also for three items, amounting to $5.50, for sums of money paid out by plaintiff for certain costs, etc. Beyond this account no other statement of the cause of action was filed in the probate court; notice of demand on the administratrix and affidavit of service of it on her, however, being also filed. It appears that the case was tried in the probate court before a jury, and from the verdict rendered by it an appeal was taken to the circuit court. On a trial de novo in the latter, before the court and a jury, there was a verdict for the plaintiff for the $5.50, being the items of money paid out, from which, after interposing a motion for new trial and saving exceptions to that being overruled, plaintiff below has duly perfected an appeal to this court.

It appears from the abstract of the record proper that on January 11, 1910, and during the December term, 1909, of the circuit court, "plaintiff's bill of exceptions was by the court approved, allowed, signed, sealed, ordered filed, and thereupon on the day and at the term last aforesaid, filed with the clerk of said court, all of which is shown by orders of record of that date (Book 230, p. 465). Said bill of exceptions, omitting caption and formal parts, is as follows:" Then follows the bill of exceptions. It also appears by the abstract of the record proper that the trial of the cause was begun in the circuit court of the city of St. Louis on January 23, 1909, during the December term, 1908, by the court and a jury, and was concluded on January 23, 1909, during that December term. It further appears from the abstract of the bill of exceptions that it was signed by the Honorable Daniel D. Fisher, he signing as "Judge of Division No. 2 of the circuit court of the city of St. Louis, state of Missouri, in and for the Eighth judicial circuit on the date aforesaid; that is, January 11, 1910." It does not appear that the bill of exceptions was approved or consented to by any attorney for defendant, while it does appear that the bill of exceptions was prepared and submitted by the attorneys for the appellant.

First. It is urged by the learned counsel for respondent that as the abstract shows the cause was tried in the circuit court before the Honorable J. Hugo Grimm, while the bill of exceptions was signed by the Honorable Daniel D. Fisher, that therefore the bill of exceptions is not properly signed and is invalid, it being argued that, in the absence of a special statute to the contrary, the bill of exceptions must be signed by the judge who tried that case, and that otherwise the bill is a nullity, and nothing is before the appellate court but the record proper. In support of this proposition, we are referred to sections 2029-2033, Rev. St. 1909; Consaul v. Lidell, 7 Mo. 250, loc. cit. 258; Voullaire v. Voullaire, 45 Mo. 602; Cranor v. School District, etc., 18 Mo. App. 397; Sahlein v. Gum, 43 Mo. App. 315; Patterson v. Yancey, 97 Mo. App. 681, 71 S. W. 845. The counsel who argued this point in the case at bar for appellant cites Berry Bros. v. Leslie, 131 Mo. App. 236, 110 S. W. 685, and Ranney v. Packing Co., 132 Mo. App. 324, 110 S. W. 613, as supporting his contention, and in argument before us denied the application of the cases cited by counsel for respondent, and claimed that the remark of Judge Goode in Patterson v. Yancey, supra, 97 Mo. App., loc. cit. 692, 71 S. W. 848, that this court ruled "that the bill of exceptions was properly authenticated by the signature of Judge Fort, without ruling that it would have been invalid had Judge Evans signed it," is to be held as a strong intimation, judging the opinion by the trend of its reasoning, that it would have been valid if signed by Judge Evans, the judge of the circuit in which Carter county was included when the bill was signed and filed and made of record. Section 2032, Rev. St. 1909, provides that "in any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard." The question presented for consideration, arising out of that section, is as to whether there is sufficient in the record to show us that the Honorable J. Hugo Grimm had gone out of office as judge in Division, No. 2 ...