Herman Savings Bank v. Kropp

• Decision Date: 08 December 1915
• Parties: HERMAN SAVINGS BANK v. ANNA KROPP, Appellant
• Court: Missouri Supreme Court

181 S.W. 86

266 Mo. 218

HERMAN SAVINGS BANK v. ANNA KROPP, Appellant

Supreme Court of Missouri

December 8, 1915

Appeal from Franklin Circuit Court. -- Hon. R. A. Breuer, Judge.

Appeal dismissed.

Hazel & Lay for appellant.

August Meyer and John W. Booth for respondent.

FARIS J. Woodson, C. J., Bond and Walker, JJ., concur; Graves, J concurs in a separate opinion; Blair and Revelle, JJ. dissent.

OPINION

In Banc.

FARIS J.

-- Separate actions in ejectment and for the balance due upon a note were by consent of parties consolidated and tried in the county of Franklin on change of venue from Gasconade county. From a judgment in the consolidated cause defendant, being cast on both issues, appealed and gave two supersedeas bonds in the aggregate sum of $ 5000. The case was set for hearing upon our docket at this term for April 26. Appellant duly filed a "short-form" transcript of the judgment and order granting an appeal, but failed and neglected to file thirty days before the case was set for hearing and still fails to file any abstract of the record as required by section 2048, Revised Statutes 1909, and by our rules. [Rule 11 of Rules of Supreme Court.] Thereupon respondent moved to affirm the case for failure in this behalf.

Being desirous, as we are advised, to avoid any possible complications which might result in releasing the sureties upon the supersedeas bonds aforesaid (Cf. Hill v. Keller, 157 Mo.App. 710, 139 S.W. 523), respondent now strenuously insists upon an affirmance of the case and not a dismissal of the appeal, and has filed herein its formal motion to this end. Since there seems to be no formal decision settling in terms this much mooted question, we deem it wise to investigate it. That the practice is to dismiss the appeal in such a case (McLaughlin v. Fischer, 188 Mo. 546, 87 S.W. 913; Crothers v. LaForce, 241 Mo. 365; Manuel v. Railroad, 186 Mo. 479; Whitehead v. Railroad, 176 Mo. 475; Clements v. Turner, 162 Mo. 466, 63 S.W. 84; Sanders v. Chartrand, 158 Mo. l. c. 352, 59 S.W. 95; Lawson v. Mills, 150 Mo. 428, 51 S.W. 678; Foster v. Vernon County, 150 Mo. 316, 51 S.W. 725; Halstead v. Stone, 147 Mo. 649, 49 S.W. 850; Murrell v. McGuigan, 148 Mo. 334, 49 S.W. 984; Walser v. Wear, 128 Mo. 652, 31 S.W. 37; Brand v. Cannon, 118 Mo. 595, 24 S.W. 434; Cunningham v. Railroad, 110 Mo. 208, 19 S.W. 822; Thompson v. Allen, 107 Mo. 479, 18 S.W. 35; Snyder v. Free, 102 Mo. 325, 14 S.W. 875; Garrett v. Mining Co., 111 Mo. 279, 20 S.W. 25; Mississippi Valley Fuel Co. v. Bean, 152 Mo.App. 703, 133 S.W. 112), there can be no manner of doubt, also, that the practice is to do this of our own motion; but the vexing question now here before us is: Have we authority in law, if we desired to do so, to affirm a case on account of the failure of appellant to file an abstract of the record?

The resolving of this question necessitates an examination of the statutes, as also of our rules, permission to make which is given by statute. [Sec. 2049, R. S. 1909.] The applicable part of section 2047, Revised Statutes 1909, is as follows:

"The appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section, and if he fails so to do, and the respondent shall produce in court the certificate of the clerk of the court in which such appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, against whom the same was rendered, the name of the party in whose favor the appeal was granted and the time when the appeal was granted, such certificate shall be prima-facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the appellate court to affirm the judgment so appealed from, and the court shall affirm the judgment, unless good cause to the contrary be shown; and the failure of the clerk to notify the appellant, or his attorney of record, of the completion of the transcript in time to enable him to have the same filed in the appellate court in the time required by law, shall be considered and is hereby declared to be good cause for refusing to affirm the judgment of the lower court on such motion."

The applicable part of section 2048, Revised Statutes 1909, which we must consider in connection with section 2047, supra, reads thus:

"The appellant or plaintiff in error shall cause to be filed in the office of the proper appellate court, in cases of appeals fifteen days before the first day of the term of such court, and in cases of writs of error on or before the first day thereof, a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript, a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal, and shall thereafter, within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court, file printed abstracts of the entire record of said cause in the office of the clerk of such appellate court, and within such time, deliver a copy of said printed abstract to the respondent or defendant in error."

Counsel for respondent insists that the statutory words "the appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section," require a timely filing of either a perfect transcript, or the filing of both a short-form transcript and an abstract of the record; and that if both such transcript and such abstract are not filed, respondent (even though appellant has already filed a sufficient short-form, or complete transcript showing the identical facts) may file a certificate of the clerk of the court nisi "stating therein the title of the case, the date and amount of the judgment appealed from," etc., and thereby become legally entitled to insist as a matter of right upon the affirmance of the case as permitted by said section 2047. We do not think so; we are of the view that a logical construction of these two sections, of our rules and of the adjudged cases are all against this contention.

The view urged on us loses sight of the facts (1) that respondent does a vain, expensive and useless thing in filing a certificate of the clerk showing the judgment and order allowing an appeal, since all of these facts are plainly shown by the short-form transcript already filed by appellant; likewise of the fact (2) that by a further provision of this section an affirmance may be avoided by the appellant, among other ways by making the showing that the clerk of the trial court failed to notify the appellant or his attorney of the completion of the transcript, as also of the fact (3) that within the purview of section 2047 the appeal is completed when and as soon as either a short-form transcript, or a complete transcript, is filed within the time in section 2048 limited. Other matters in said section 2048, while in a logical sense pertaining to the perfecting of the appeal, are yet, in a broader sense, mere statutory details making for expedition and convenience in appellate review. So when section 2047 says that the appeal shall be perfected "in the manner and within the time prescribed" in section 2048, it has reference (in so far as the right to affirm upon motion for failure, is concerned) to the filing "in the office of the proper appellate court, in cases of appeals fifteen days before the first day of the term of such court . . . a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal." It does not mean that the appeal is not perfected within the purview and purpose of section 2047 till the abstract is filed, for if the appellate court were behind in its docket, the anomalous conditions would be presented of not perfecting an appeal for two or three years after the clerk of the trial court had done all he could do, and allowing appellate courts, if they saw fit, to fix by rule the time of perfecting an appeal at a period subsequent to the argument and submission of the case. By the terms of section 2047 an affirmance may always be saved by showing default of the clerk of the trial court. Could a dismissal of this appeal be now prevented by any showing of the trial clerk's default? Or could an affirmance thereof -- granting arguendo, our power to affirm -- be prevented now by a showing, however clear, of such clerk's default? The answer is obvious and in our view shows conclusively that the affirmance provided for by section 2047 was not intended necessarily to follow a failure to file a proper printed abstract of the record. By section 2049 we are given power to make rules to carry into effect the provisions of sections 2047 and 2048. We have made these rules. [Rules 11, 12, 13 and 16 of the Supreme Court.] Said Rule 16 reads as follows:

"If any appellant in any civil case shall fail to comply with the rules numbered 11, 12, 13 and 15, the court, when the cause is called for hearing, will dismiss the appeal or writ of error; or at the option of the respondent continue the cause at the cost of the party in default."

Till we change the penalty of Rule 16 (since it was made in aid of and under the direct authority of a solemn statute), it has practically the binding force and effect of a statute. If we are to change it, we ought to change its substance and not nullify it by an indirect collateral attack. There are not in ...