Fred A. H. Garlichs Agency Co. v. Anderson

• Citation: 226 S.W. 978
• Decision Date: 20 December 1920
• Docket Number: No. 13727.,13727.
• Parties: FRED A. H. GARLICHS AGENCY CO. et al. v. ANDERSON.
• Court: Court of Appeal of Missouri (US)

226 S.W. 978

FRED A. H. GARLICHS AGENCY CO. et al. v. ANDERSON.

No. 13727.

Kansas City Court of Appeals. Missouri.

December 20, 1920.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by the Fred A. H. Garlichs Agency Company and another against Leonard V. Anderson. From an adverse judgment on the merits, the plaintiffs appeal, and from an order overruling his motion to set aside an order approving and ordering filed the bill of exceptions, the defendant appeals. Reversed and remanded with directions on plaintiffs' appeal and affirmed on defendant's appeal.

See, also, 202 S. W. 260; 223 S. W. 641.

Kendall B. Randolph, of St. Joseph, and Brewster, Kelly, Brewster & Buchholz, of Kansas City, for appellants.

Broaddus & Crow, of Kansas City, and John S. Boyer, of St. Joseph, for respondent.

TRIMBLE, J.

There seem to be two appeals involved in this case, one by the plaintiffs on the merits and the other by the defendant from an order overruling the latter's motion to set aside the trial court's order approving and ordering filed the bill of exceptions which the court had signed. Said motion was filed at the same term the bill was signed and filed, but some 14 days after that was done. No formal order consolidating the appeals was made, but it seems to have been done by "unanimous consent."

We think there is no merit in the appeal on the motion to set aside the order approving the bill of exceptions. The filing of such a bill is governed by the statute. Sections 2028-2037, R. S. 1909; Laws 1911, p. 139. What should go into a bill of exceptions must be settled in the trial court; the appellate court cannot undertake to determine that matter. Stout v. Woods, 79 Ind. 108. Indeed, if an appeal in such matter is allowable, we do not see what we could do in the matter, except that, if it appeared that appellant had not brought up all of the evidence heard by the chancellor, then, in the case on the merits, we might affirm the judgment on the ground that as the burden is on the appellants to show the invalidity of the chancellor's finding, they must bring all of the evidence before the reviewing court, else it is not in position to convict the chancellor of error. The bill of exceptions recites that it contains all of the evidence heard. In the evidence on the motion it appears that the stenographer took the evidence in the case on the merits down in shorthand and then transcribed it in long-hand, and this went into the bill of exceptions. The bill was then submitted to defendant's counsel, who made a written specification of objections thereto. These objections were taken by appellants with the bill to the chancellor, who, with the stenographer, went over it, comparing the bill with the stenographer's notes, and they found the bill contained all of the evidence, whereupon the bill was approved, signed, and filed.

But it seems that defendant, in the hearing on the motion, contended that three or four exhibits, with evidence in relation thereto, were omitted from the bill, and as these exhibits had the identification marks of the stenographer on them, the court directed that they be "attached" to the bill and this was done, notwithstanding the fact that the evidence does not show they were introduced in evidence; and, according to the examination and comparison of the bill with the stenographer's notes, no evidence of any kind was omitted. Said exhibits, thus claimed to have been omitted and ordered "attached" by the court, are in the abstract of the bill of exceptions brought up by the appellants, and we think a reading of the abstract will disclose that the evidence in relation thereto is in the bill. At least the abstract of the record of the bill of exceptions does not disclose on its face any failure to include evidence heard or used on the trial.

But defendant contends that the ordering of the exhibits attached to the abstract shows that the chancellor recognized the bill was incomplete and did not contain all the evidence, and that therefore the court should have set aside the order approving the bill, and that, since the bill of exceptions was then a part of the record, the only way the court could amend it was by an order nunc pro tune based on sufficient memoranda to authorize such correction. Furthermore, as no motion for an order nunc pro tune was filed, the court could only set aside the order approving and ordering the bill filed. But it is manifest from the directions of the court in ordering the exhibits attached that this was done, not because he (the chancellor) thought the bill was incomplete, but to meet the complaint of the defendant that the exhibits were not in the bill; and they were directed to be attached because they had the stenographer's identification mark on them, though there is nothing to show that after they were thus identified they were ever introduced, except the fact that there is evidence in the bill in relation to them as if they were in evidence. Besides, what the court did with reference to the bill was done at the same term the bill was filed. And if the attaching of certain exhibits, on complaint of defendant that they were omitted, be an amendment of the bill, then it was done at the same term the bill was filed, and an amendment at the same term is permissible. State v. Gartrell, 171 Mo. 489, 504, 71 S. W. 1045. It is true the better way would have been to set aside the order approving the bill, then have the exhibits inserted, and then refile the bill. But, under the circumstances of this case, this is a matter of form rather than of substance. It does not justify us in holding that there is no bill of exceptions before us and that we can consider nothing but the record proper in the case on its merits. The judgment of the chancellor overruling the motion is affirmed.

This brings us to the merits of the plaintiff's appeal.

The action is one in equity to enjoin and restrain the defendant from engaging in any manner, directly or indirectly, in the insurance business in St. Joseph and Buchanan counties for a period of five years from and after August 25, 1916.

It seems that the Fred A. H. Garlichs Agency Company was a corporation engaged in the insurance business in St. Joseph, Mo. Plaintiff Fred A. H. Garlichs owned 138 shares, his son Loren Garlichs owned 2 shares, and the defendant Leonard V. Anderson 70 shares. The three formed the board of directors. A partnership agency, which we will call the Garlichs-Anderson Insurance Agency, composed of Fred A. H. Garlichs, who owned five-sixths, and Leonard V. Anderson, who owned one-sixth thereof, was engaged in the insurance business at Kansas City.

On January 22, 1916, the partnership and the corporation, and Fred A. H. Garlichs and Leonard V. Anderson, entered into a contract whereby it was agreed that the partnership should be sold, and that until it was sold said Anderson was to devote his whole time to the partnership business and in efforts to sell the same; that when it was sold Anderson should enter the employment of said St. Joseph Corporation, the agency company, at a salary of $140 per month, and Fred A. H. and Loren Garlichs should receive a salary of $280 per month. The employment of Anderson was to continue for 15 years from the date of the contract.

It was further provided that when the partnership agency at Kansas City was sold said Anderson should become identified with And devote his whole time to the business of the agency company at St. Joseph; that he should at all times be faithful to the best Interests of the company, should account for all sums of money coming into his hands for the company, and should not at any time overdraw his account with the company.

It was further agreed between said Anderson and said agency company that —

"In case either of them shall violate the terms of this contract in any material respect, then the other shall have the right to immediately terminate this contract as between themselves, so far as it provides for the employment of said Anderson."

Said contract further provided that —

If said Anderson should "voluntarily quit the service of said company, or voluntarily terminate this contract as to his employment by said company as hereinbefore provided, or the company shall terminate this contract as to the employment of said Anderson for any material violation of its terms by him, as above provided, then in any such event he, the said Anderson, will not at any time, either for himself or as an employee or associate in any capacity, as a partner or otherwise, with any person or persons or corporation, directly or indirectly, through an office located in Buchanan county, Mo., or at any other place, engage in any branch of the insurance business, or permit any other person, corporation, or association to use his name in any branch of such business within the limits of Buchanan county, Mo., for a period of five years after the termination of this contract."

The partnership agency at Kansas City not having been sold, the aforesaid contract was, on May 20, 1916, modified so that it was agreed that —

Anderson should "devote the major portion of his time to the business of the within-named Fred A. H. Garlichs Agency Company, devoting only such time as may be thought necessary to the business of said partnership, and the said L. V. Anderson shall not be entitled to any compensation for his services from said partnership but shall receive a salary from said agency company as provided in said contract."

On the 25th day of August, 1916, plaintiffs served upon defendant a written specification of the things complained of by them and for which he was therein notified that he was discharged from further; employment. Defendant, upon the theory that he was wrongfully discharged and because of certain alleged violations of the contract on plaintiffs' part with regard to him, immediately sought and obtained...