Flannery v. Kansas City, St. J. & C. B. Ry. Co.

• Decision Date: 04 March 1889
• Citation: 10 S.W. 894
• Court: Missouri Supreme Court
• Parties: FLANNERY v. KANSAS CITY, ST. J. & C. B. RY. CO.

10 S.W. 894

FLANNERY v. KANSAS CITY, ST. J. & C. B. RY. CO.

Supreme Court of Missouri.

March 4, 1889.

APPEAL — PRACTICE — BILL OF EXCEPTIONS — WAIVER OF DEFECTS.

On appeal to the Kansas City court of appeals, appellant filed a transcript containing a bill of exceptions, from which the signature of the judge was omitted by mistake; the original bill being signed. Rule 15 of said court requires the appellant to file a transcript and a brief, copies of which must be furnished respondent, who must furnish appellant with his brief and such further abstract as he may deem necessary. The abstract of appellant (no counter-abstract being filed by respondent) stated that a bill of exceptions had been filed, and no objection to such statement was made by respondent, and no point thereon was made in his brief or argument, but he treated the case as if the bill had been duly taken. The record recited that the bill was duly signed by the judge, and was made a part of the record. Held that, by his failure to file a counter-abstract, or to make any objection to the absence of the judge's signature in his brief or argument, respondent waived his right to take advantage thereof.

Certified case from the Kansas City court of appeals.

Strong & Mosman and Ellison & Edwards, for appellant. C. W. Freeman, for respondent.

BRACE, J.

At the March term, 1886, of the Kansas City court of appeals a decision was rendered in this case reversing the judgment of the circuit court of Platte county, wherein one of the judges of said court sitting in the case delivered a dissenting opinion, in which he says: "In this case, what purports to be a bill of exceptions has been considered by a majority of the court as a bill of exceptions proper, because it has been so considered by the counsel on either side. The fact is, the paper purporting to be a bill of exceptions is not signed by the judge of the trial court, and therefore is not a part of the record in the case. * * * I deem the decision in this case contrary to the decisions in State v. Jones, 58 Mo. 506, and Smith v. Railway Co., 55 Mo. 601, and the case should be certified to the supreme court." It was accordingly so certified. Since the case has been in this court, a certificate of the clerk of the circuit court of Platte county has, by agreement, been filed herein, showing that the original bill of exceptions was duly signed by the judge of the circuit court. The omission of his signature in the transcript was a clerical inadvertence. The majority of the court of appeals, in reply to the dissenting opinion, say: "* * * By rule 15 of this court it is provided, in substance, that in all cases the appellant or plaintiff in error shall file with the clerk of this court, on or before the day on which the cause is docketed, five copies of a printed abstract or abridgment of the record in said cause, setting forth so much thereof as is necessary to a full understanding of all the questions presented to this court for decision, together with a brief containing in numerical order the points or legal propositions relied on, with citation of authorities, etc. The rule then provides that copies of this abstract shall be furnished to the opposite party, who shall within eight days thereafter deliver to the appellant or plaintiff in error a copy of his brief in response, with briefs and points relied on, `and any such further abstract of the record as he may deem necessary,' and shall file with the clerk said briefs, etc., before the hearing of the cause. Under this rule this court has repeatedly and uniformly held that where respondent or defendant in error does not file any additional abstract, we will accept that of the appellant or plaintiff in error as containing a correct statement of the...