Hemphill v. City of Morehouse
| Citation | 142 S.W. 817,162 Mo.App. 566 |
| Parties | ADA HEMPHILL, Respondent, v. CITY OF MOREHOUSE, Appellant |
| Decision Date | 09 January 1912 |
| Court | Court of Appeal of Missouri (US) |
Argued and Submitted December 4, 1911.
Appeal from Madrid Circuit Court.--Hon. Henry C. Riley, Judge.
AFFIRMED.
Judgment affirmed.
J. V Conran for appellant.
(1) The record discloses the undisputed fact that respondent did not show that she was hurt at the place set out in her petition. The demurrer offered by appellant at the close of the testimony should have been sustained. There was variance between the testimony and the petition. Groll v Tower, 85 Mo. 249; Lind v. Vaughn, 17 Mo. 585. (2) L. W. Hart, witness for respondent, was asked the following question by "Who ordered individuals to put it in there, doctor, where that--?" to which the witness in answer, says: "Last summer we ordered them to," whereupon counsel for appellant interposes objection. This testimony was prejudicial to appellant and was too remote to be competent. Benton v. St. Louis, 217 Mo. 709. (3) Instruction No. 1, given by the court for respondent does not properly declare the law. It is not controverted, that the walk and street referred to, was the right of way of the St. Louis Iron Mountain & Southern Railroad. Atkinson v City of Nevada, 133 Mo.App. 1; Foster v. Kansas City, 114 Mo.App. 730; Benton v. St. Louis, supra; Downend v. Kansas City, 156 Mo. 60.
Traylor & Baker and Brewer & Riley for respondent.
(1) The court did not err in admitting proof that the city authorities ordered the sidewalk at the place where the injury occurred to be rebuilt in the summer of 1909; the issue being street or no street. Benton v. St. Louis, 217 Mo. 709. (2) It was not necessary for respondent to show that this particular part of front street was ever platted, dedicated or that any repair of said street was made prior to the injury. It is sufficient for respondent to show that the public generally had used this part of front street for more than ten years and that this walk had been constructed and used by the public generally for more than ten years; and such use was sufficient as to notify the city officials of its being used as a public thoroughfare. Moss v. Springfield, 101 Mo. 617; Meiners v. St. Louis, 130 Mo. 284. (3) Conceding for the sake of this case that the court erred in permitting respondent to show that, after the injury to respondent, the city ordered sidewalk be built at said place, and conceding further that instruction No. 1, given for the plaintiff, was error, yet if the facts in this case show that plaintiff ought to recover then said errors of the court are harmless. R. S. 1909, sec. 2082; King v. King, 155 Mo. 425; Coleman v. Reynolds, 207 Mo. 477; Noble v. Blount, 77 Mo. 235.
This is an action by plaintiff, respondent here, to recover damages for an injury said to have been received by her in consequence of falling through a defective sidewalk in the city of Morehouse, a city of the fourth class. The answer was a general denial. The jury returned a verdict in favor of plaintiff in the sum of $ 2000 and judgment followed. From this plaintiff has appealed.
A short form of transcript was filed in this court on the 10th of September, 1910. This transcript sets out that on the 29th of March, 1910, that being the 8th day of the March term of court, the cause came on for trial; that a jury was impaneled, naming them, and the trial progressed; that at the close of plaintiff's evidence defendant offered a demurrer which was overruled by the court, "to which defendant excepts;" that the trial again progressed and at the close of all the evidence the defendant again offered a demurrer to all the evidence, which demurrer was overruled by the court, "to which ruling of the court defendant excepts," and the trial being finished the jury returned a verdict for plaintiff in the sum of $ 2000; that it was signed by ten of the twelve jurors, giving their names. The judgment entry then proceeds: "It is therefore considered by the court that the plaintiff recover of the defendant the said sum of two thousand dollars, the damages aforesaid as assessed together with her costs and charges in this behalf expended and have execution therefor." This transcript further proceeds to set out that afterwards on the 2nd of April, it being the twelfth day of the March term, 1910, defendant filed its motion for a new trial and also in arrest of judgment, and that on the same day these motions were taken up, submitted to the court and overruled, "to which ruling of the court the defendant excepts." Following this in the transcript it is certified that defendant, by attorney, "files its affidavit for appeal herein, which affidavit is found by the court to be sufficient under the statutes, and the court grants the defendant an appeal herein to the St. Louis Court of Appeals, and the court further grants the defendant ninety days in which to file its bill of exceptions herein and now comes the defendant and deposits with the clerk the sum of ten dollars, the docket fee in this cause in the St. Louis Court of Appeals." All of this is certified to by the clerk of the circuit court of New Madrid county, attested by seal. On the 15th of May, 1911, appellant filed what purports to be a full abstract of the record and on the 17th of May filed its statement and brief. The cause was docketed for hearing in this court June 9, 1911. On the 2nd of June, the respondent filed a motion to affirm the judgment accompanying this with a statement and brief and on the 8th of June the appellant filed affidavits in opposition to this motion which set out as the facts, among others, that the bill of exceptions was duly perfected within the time granted and as extended, and that the abstract had been accepted by counsel for respondent. On the 9th of June this court overruled the motion to affirm and continued the cause to the October, 1911, term. On the 29th of November counsel for respondent filed their statement and brief and the cause being docketed for hearing for December 4, 1911, it was argued by respondent and taken as submitted on brief by appellant. We have set out these dates and matters for the purpose of calling attention to Rule 33 of this court which was adopted July 12, 1910, and went into effect August 1st of that year, and consequently applies to the abstract filed in this case May 15, 1911. The motion to affirm was overruled as we cannot affirm a judgment because the abstract is defective; the proper motion to reach defects in the abstract is a motion to dismiss the appeal. Even if it had been treated as a motion to dismiss the appeal, this motion was not filed within the time required by Rule 33 of this court if it is sought to attack the abstract. That rule provides that if "a respondent wishes to question the sufficiency of the appellant's abstract of the record, he shall file his objections in writing in the office of the clerk of this court within ten days after a copy of said abstract of the record has been served upon him." This motion was filed only seven days before the cause was docketed for hearing. Furthermore, on the copy of the abstract, which was filed in this court on the 15th of May, is this indorsement: This is signed by all the attorneys who appear as counsel of record for respondent. While no date of this indorsement appears it was obviously made prior to May 15, 1911, as the abstract was filed in court with this indorsement on it on that date. It will be observed that it was after counsel for respondent had waived informalities in the abstract that they attacked that abstract for informalities. Evidently the abstract had been served on counsel more than ten days before they filed the motion to affirm, and that if their waiver meant anything, it meant that they had waived compliance with Rule 12 of this court, which requires abstracts to be filed at least thirty days before the cause is set for hearing, and had waived its defects. We therefore concluded that counsel for respondent were in no position to demand that the appeal be dismissed either because the abstract was filed out of time or because it was insufficient. The object of Rule 33 of our court, as stated in that rule itself, was to avoid disposing of appeals on points of appellate procedure, mainly the insufficiency of abstracts of record, and to facilitate the disposition of appeals on their merits. If the defects can be cured by resort to the record proper and to the bill of exceptions, we intend to give appellant an...
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