Iba v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 05 May 1913
• Citation: 157 S.W. 675,172 Mo.App. 141
• Parties: MARY IBA, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Appellants
• Court: Kansas Court of Appeals

157 S.W. 675

172 Mo.App. 141

MARY IBA, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY et al., Appellants

Court of Appeals of Missouri, Kansas City

May 5, 1913

172 Mo.App. 141 at 161.

Original Opinion of May 5, 1913, Reported at: 172 Mo.App. 141.

Motion overruled.

TRIMBLE J. Ellison, P. J., concurs. Johnson, J., having dissented from the original opinion, thinks a rehearing should be granted, but concurs in what is said concerning objectionable language used in motions for rehearing.

OPINION

ON MOTION FOR REHEARING.

TRIMBLE J.--Counsel for respondent, in their motion for rehearing contend, with apparent sincerity and much heat, that the appellate court cannot lawfully consider the statements and reasons given by the trial judge, at the time the motion for new trial was passed on, because said statements are no part of the record. The statements of the trial judge in this case were taken down by the stenographer at the time and were duly incorporated in the bill of exceptions and appear in full in the printed abstract of record upon which the case was submitted to us. Passing by the question whether or not this was sufficient to make said statements a part of the record, it may be well to remind counsel of the fact (which they seem to have overlooked or forgotten), that the statements were made a part of the record by express agreement and stipulation on the part of counsel who now complain. The trial court, in overruling the motion for new trial, anounced his view of the case and of the question then before him, and the record shows the following occurred:

"Mr. Phillip: I would like for your Honor to let the record show the remarks your Honor made in overruling defendant's motion for a new trial.

"The Court: You want to get this whole thing before the court of appeals and let them say, and I would be glad for them to do it.

"Mr. Crow: Then your Honor can write out your Honor's view of this question and I will agree to have it made a part of the bill of exceptions."

In view of the above agreement it is difficult to see how this court could hold that the statements were no part of the record, even had timely objections thereto been made either in brief or in oral argument.

Motions for rehearing are given careful and patient consideration. It is suggested that, in drawing them, it is unnecessary to use extravagant, hasty or intemperate language in describing or...