Flannery v. Kansas City, St. Joseph & Council Bluffs Railroad Co.

• Decision Date: 04 March 1889
• Parties: Flannery v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant
• Court: Missouri Supreme Court

10 S.W. 894

97 Mo. 192

Flannery v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, Appellant

Supreme Court of Missouri

March 4, 1889

Certified from Kansas City Court of Appeals on Division of Opinion in that Court.

Affirmed.

Strong & Mosman for appellant.

The defect in the transcript, which made the occasion for certifying the case, was not known by counsel on either side till after the hearing of the appeal, and after the opinion of the majority reversing the judgment was written, filed and published. It was unknown by that majority until after the opinion was written. In the court of appeals respondent's counsel did not complain or suggest a diminution of the record, nor ask that the case be stricken from the docket. So far as we know, he has not claimed, and does not now claim, anything as against the sufficiency or authenticity of record. Under the rule announced by that court, he ought not to be heard to deny that it was a true record.

C. W Freeman for respondent.

OPINION

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 (23 Mo.App. 120), 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. Railroad, 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 appellant or plaintiff in error as containing a correct statement of the record, and we will not go behind the abstract. * * * The appellant in this case complied with this rule. The respondent filed no counter abstract controverting the correctness of appellant's abstract in the particular in question. The abstract expressly states, on page 23, that thereupon in due time the defendant (appellant) filed its bill of exceptions. This was accepted as correct in...