Lambert v. Lambert

• Decision Date: 18 January 1919
• Docket Number: No. 2309.,2309.
• Parties: LAMBERT v. LAMBERT.
• Court: Missouri Court of Appeals

208 S.W. 118

LAMBERT v. LAMBERT.

No. 2309.

Springfield Court of Appeals. Missouri.

January 18, 1919.

Appeal from Circuit Court, Butler County; John A. Gloriod, Special judge.

Action by Icie Lambert against Walter Lambert. Judgment for plaintiff, and defendant appeals. Certified to Supreme Court.

E. E. Fenzel and L. M. Henson, both of Poplar Bluff, for appellant.

David W. Hill, of Poplar Bluff, for respondent.

STURGIS, P. J.

Plaintiff sued the defendant, her husband, by attachment for support and maintenance. The defendant had absconded when the suit was commenced, and his whereabouts being unknown, he was notified by publication. The property attached consisted of a house and lot in Poplar Bluff and a note owned by defendant; such being all his property. Plaintiff is defendant's second wife, and according to the petition the defendant married plaintiff one day, left the next day, and plaintiff brought this suit five days later. While defendant was living with his first wife, they, having no children, took into their home and adopted a girl, who continued after her foster mother's death to live in defendant's home till and after defendant's second marriage and absconding. This home is the property which plaintiff attached, and notice of the attachment was served on such adopted child as the terre-tenant.

At the return term of the case the defendant appeared by his attorneys and filed an answer. The plaintiff moved the court to strike out this answer, and the court sustained the motion on the ground that the attorneys filing the answer had not been employed by, and had no authority from, defendant to answer and defend the case. The court heard evidence on this point which showed that the adopted daughter, the terretenant of the attached property, employed the attorneys to defend the case for her father and herself, the defendant having left the country before the suit was filed, and no one had heard from him since; that when defendant absconded he left this property in his adopted daughter's charge and possession, and told her to keep it, live in it, and take care of it.

The court also denied this adopted daughter's right to be made a party defendant. The case was then tried ex parte by plaintiff, resulting in a judgment in her favor for $750, and sustaining the attachment. The trial judge, though refusing to let defendant by these attorneys make a defense on the merits, allowed him an appeal on an affidavit by one of such attorneys, and subsequently signed and allowed a bill of exceptions prepared by such attorneys.

We are inclined to hold the court erred in striking out the answer filed merely because in defendant's absence the attorneys filing the answer for him did so at the instance of his adopted child left in possession of the property and charged with its care and preservation. In addition to her relationship to the absent defendant, she had a present as well as a contingent interest in the preservation of this property from any unjust claim, and this implies the right to cause inquiry into and defense against any claim. It is only in extreme cases and to prevent injustice, as where it is shown to the court that the attorney appearing for a plaintiff or for a defendant is not doing so in good faith and in the interest of such party, that the court will strike out the pleading on the ground that the attorney appearing for such party has no right or authority to do so. For obvious reasons the court should be more reluctant in this respect in case of a defendant who is forced into court than In case of a plaintiff who comes voluntarily. This we think is the effect of our reasoning and decision in Munhall v. Mitchell, 178 Mo. App. 494, 163 S. W. 912, where most of the cases are cited.

The decision of this point must, however, be left with the Supreme Court under the view we take of another question lying at the threshold of this case, to wit, whether there is any properly signed and authenticated bill of exceptions by which alone the error, if any, must be preserved for decision on the appeal. The record discloses that the case was tried at the January term, 1918, of the Butler county circuit court. The regular judge of said court was absent and unable to hold said term of court, and the attorneys of such court, under section 3961, R. S. 1909, duly elected Hon. John A. Gloriod as special judge to hold court for such term. Such special judge qualified and held such term of court, and was the judge who tried this case. In due course of procedure time was granted to defendant to file his bill of exceptions in vacation. That term of court adjourned March 26, 1918. Said special judge thereafter and within due time signed the bill of exceptions on September 28, 1918, and same was then duly filed. The regular judge had returned and entered upon his official duties before such date. The respondent contends that Special Judge Gloriod, who was elected to hold the January term of the Butler circuit court, and who, as such and at such term, tried this case and made the order extending the time to file the bill of exceptions in vacation, had no authority to sign same after the adjournment of the January term of court, since he was elected special judge for that term only and his power as such even in cases tried by him ended with such term. Such is the holding of the Kansas City Court of Appeals in Berry Brothers v. Leslie, 131 Mo. App. 236, 110 S. W. 685, where the court pointedly ruled that the office and power of a special judge elected to hold a term or a part of the term of court expires with such term, and he is without authority after the end of such term to sign a bill of exceptions in a case tried by him. We are not satisfied with this decision, and think it unnecessarily "plants thorns in the pathway of an appeal."

The spirit and reason of the law clearly is that the judge who tries a case is the proper person to allow and sign the bill of exceptions therein, for he knows best what took place at the trial, and what objections were made and exceptions saved. At common law the bill of exceptions must be sign ed and filed during the trial term. Hassinger v. Pye, 10 Mo. 156; R. S. 1879, § 3636. The rule has always been that, except as modified by statute to relieve against special hardship hindering an appeal, the bill of exceptions should and must be signed by the judge trying the case. Patterson v. Yancey, 97 Mo. App. 681, 687, 71 S. W. 845; Consaul v. Lidell, 7 Mo. 250; Connelley v. Leslie, 28 Mo. App. 551; Cranor v. School District, 18 Mo. App. 397.

In Consaul v. Lidell, supra, the court rejected a bill of exceptions signed by a successor in office, but said (page 256):

"Had the late judge taken notes of the evidence, and after he was out of commission signed a bill of exceptions, this, accorcing to an intimation of the court of New York in the cases above cited, would have been good."

The Cranor v. School Distri2t Case, supra, was tried before a special judge, but whether a special judge for the particular case or for the term of court is not stated. The bill of exceptions was signed by the regular judge after the end of the trial term. Judge Philips there aptly said:

"The bill of exceptions could only be signed by the judge who tried the case, and he was John H. Shanklin. How could Judge Howell certify that certain evidence was offered and excluded at the trial, when he was constructively absent? The statute contemplates that the matter of exceptions comes under the personal observation of the trial judge, and that the error is called to his attention at the time, and the exception then and there taken."

This view of the law is emphasized by the reading of section 2028, R. S. 1909, which says that the "person composing the court shall, if such bill be true, sign the same."

In 1889 the Legislature enacted what is now section 2032, R. S. 1909, which reads:

"Bill of Exceptions Signed by Succeeding Judge, When.—In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard."

The object of this statute is obviously to provide a remedy in those cases where the judge trying the case "goes out of office" by death, resignation, expiration of his term, etc., and cannot sign the bill. In such case the statute provides that the succeeding or acting judge of the court where the case was tried may sign the bill, II the parties agree to its correctness or it is shown to him to be correct. This section appears on its face to apply to regular judges, for they are the only ones who can properly be said to "go out of office" and have a successor. In State ex rel. v. Railroad, 270 Mo. 252, 260, 192 S. W. 990, 993, the court said:

"The same necessity in which this rule is founded afforded the incentive for the enactment of the law we are now considering. While, at the time of its enactment in 1889, the common law, through the official capacity and powers of the trial judge, carefully preserved to the litigant the means of preserving for review the rulings incident to the trial, it was possible these might be foreclosed by the cessation of the office of the trial judge before they had been properly preserved and recorded. The statute (R. S. 1909, § 2032) carefully covered this field, and its remedial words are no broader than its remedial purpose. It covers those cases only `where the judge who heard the cause shall go out of office before signing the bill of exceptions.' "

At the time this statute was passed, and for many years previous thereto, the statute in relation to special judges (section 1107, R. S. 1879, now section 390;1, R. S. 1909) was in force and had been Construed to empower such special judges to extend the time and sign and allow bills...