Fruin v. O'Malley

• Decision Date: 27 February 1912
• Citation: 145 S.W. 437
• Parties: FRUIN et al. v. O'MALLEY et al.
• Court: Missouri Supreme Court

145 S.W. 437

FRUIN et al. v. O'MALLEY et al.

Supreme Court of Missouri. Division No. 2.

February 27, 1912.

On Motion for Rehearing, March 21, 1912.

1. APPEAL AND ERROR (§ 519)—RECORD— AGREED STATEMENTS OF FACTS.

Agreed statements of facts in cases instituted by petitions are mere matters of evidence, and never become a part of the record, unless incorporated in a bill of exceptions.

2. TRIAL (§ 388)—TRIAL BY COURT—SPECIAL FINDINGS.

Rev. St. 1909, § 1972, provides that on trial of a question of fact by the court the court need not state its finding, except generally, unless one of the parties requests it with a view of excepting on questions of law in the case. Held that, when requested, a statement or conclusion of facts proven and the conclusions of law must be written up and filed by the trial court, but this statement has no connection with the general findings which are usually recited in the judgment itself, but the special findings of facts and conclusions of law should be entirely separate from the judgment, that the party requesting such finding may except to the decision of the court on the questions of law or equity in the case.

On Motion for Rehearing.

3. APPEAL AND ERROR (§ 1153) — DISPOSITION OF CAUSE.

Under Rev. St. 1909, § 2083, which authorizes a rendition of such judgment on appeal as should have been entered below, the Supreme Court can correct an error in a judgment on its face in awarding interest at 8, instead of 6. per cent. per annum.

Appeal from St. Louis Circuit Court; D. G. Taylor, Judge.

Action by Jeremiah Fruin and others against Maggie O'Malley and others. Judgment for plaintiffs, and defendants appeal. Modified and affirmed.

Frank C. O'Malley, for appellants. Geo. D. Harris, for respondents.

BROWN, J.

Action at law to foreclose lien for special tax bills issued for street improvements. From a judgment of the circuit court of St. Louis city awarding to plaintiffs a lien as prayed in their petition, defendants appeal.

In seeking a reversal of the judgment of the trial court, the defendants attack, not only the validity of the contract under which the improvements were made, but also the constitutionality of certain parts of the charter of St. Louis city authorizing and regulating the improvement of streets and the issue of special tax bills for such improvements. Before considering the alleged invalidity of the tax bills which defendants' resourceful attorneys have presented with much learning and industry, we must first determine whether or not the errors, if any, committed by the trial court have been brought here in such manner as to authorize a review by an appellate court. The appellants have filed in this court what they term a printed abstract of the record, which embraces the petition, answer, reply, a special finding of facts by the trial court, the judgment, orders showing the filing of a motion for new trial, the overruling of same, and the granting of an appeal. No bill of exceptions was filed. The motion for new trial is not included in the record, and the finding of facts is not a part of the judgment; that is, the judgment is complete without reference to the finding of facts, and there are no conclusions of law, unless we shall say that the judgment itself is a conclusion of law, in that it declares that the plaintiffs are entitled to recover.

Respondents have also filed in this court what they term an "Additional Abstract of the Record," which is simply a printed copy of a stipulation entered into in the trial court agreeing upon certain matters of evidence to be considered by said trial court in ascertaining the facts in dispute and rendering its judgment. Appellants have objected to this "additional abstract," on the ground that it was filed out of time. Regardless of when it was filed, it is clear that it has no place in this appeal. Agreed statements of fact in cases instituted by petitions are mere matters of evidence, and never become a part of the record, unless incorporated in a bill of exceptions, which was not done in this case. State ex rel. Malin v. Merriam, 159 Mo. 655, 60 S. W. 1112; Smith v. Smith, 111 Mo. App. 683, 86 S. W. 586.

The second point for our consideration is whether or not we can, without a motion for a new trial or bill of exceptions in the record, consider and review the alleged errors in the trial court's conclusions of law. This point is not altogether free from difficulty. This court in an action at law has announced the doctrine that, when a trial court makes its finding of facts a part of its judgment, such finding thereby becomes a part of the record proper, and may be reviewed on appeal without a bill of exceptions. Snuffer v. Karr, 197 Mo. 182, 94 S. W. 983, 7 Ann. Cas. 780. The Kansas City Court of Appeals has held that,...