O'Hara v. Berthold

• Decision Date: 16 July 1918
• Docket Number: No. 19096.,19096.
• Parties: O'HARA v. BERTHOLD et al.
• Court: Missouri Supreme Court

204 S.W. 1089

O'HARA v. BERTHOLD et al.

No. 19096.

Supreme Court of Missouri, Division No. 2.

July 16, 1918.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by Henry O'Hara, revived in name of Eliza P. O'Hara, as executrix, against John Sarpy Berthold, revived in name of Anne Caroline Berthold, executrix, and another. From an adverse judgment, plaintiff appeals. Affirmed.

Fred Armstrong, Jr., and A. Sidney Johnston, both of St. Louis, for appellant. Edward C. Kehr, Marion C. Early, and Fred Wislizenus, all of St. Louis, for respondents.

WALKER, P. J.

This suit was brought by Henry O'Hara against Sarpy Berthold and Curtis M. Jennings for an accounting. O'Hara and Berthold have since died, and the suit has been revived in the names of their respective legal representatives. A reference, on account of a long and complicated account, was had. The original referee, after failing for a number of years to file a report, died; a successor was appointed, who kept the matter in abeyance for an additional term of years, when Judge Hugo Muench was appointed as referee. He promptly made a careful examination of the record and filed a report, finding a net sum due defendants by plaintiff of $4,450.23, and recommended a division of the costs between them. The court in due time over-ruled the exceptions filed by each party to the referee's report, and rendered judgment against the plaintiff in conformity with such report. On account of the condition of the record, a further statement is unnecessary.

The appeal was prosecuted by filing with the clerk of the court, in conformity with section 2048, R. S. 1909, a short form of transcript. Within the time "required by law an abstract of the record was filed. Respondents challenged the sufficiency of the abstract on the grounds that it did not appear therein, either by affirmative averment or apt reference, that appellant had filed and preserved exceptions to the report of the referee, or that she had excepted to the overruling of the motion for a new trial. No action was taken by appellant to supply these defects until the case was called for hearing in this court, when her counsel filed what is termed "Corrections to Appellant's Abstract of Record." They comprise simply a statement by counsel that the exceptions noted as having been omitted were in fact properly made, and that the record should be amended by inserting same in their appropriate places. This was a mere memorandum; it was not accompanied by notice to, or the consent of, counsel for respondents, and was not preceded by a request for a diminution of the record, and this court made no order in regard to it, other than to permit counsel to file same, its propriety to be considered and determined preliminary to the disposition of the case on the merits.

That there may be an amendment to an abstract under proper circumstances, and in a proper manner, for good cause shown, is beyond question, but it cannot be accomplished in the manner here pursued. Everett v. Butler, 192 Mo. loc. cit. 569, 91 S. W. 890. Under our rule 4 (186 S. W. vii):

"No suggestion of diminution of record in civil cases will be entertained after joinder in error, except by consent of parties."

There is a complete absence in the files or upon the record of any suggestion of this character. Nor is what purports to be the correction of the record attested in any manner, either by the certificate of the clerk of the trial court or the affidavit of the parties or their counsel. Here the corrections submitted are simply signed by counsel for appellant. While it is true that no formal joinder in...