Lieffring v. Birt

• Decision Date: 13 October 1947
• Docket Number: 40374
• Parties: Frank Lieffring, Appellant, v. Charles Birt
• Court: Missouri Supreme Court

204 S.W.2d 935

356 Mo. 1092

Frank Lieffring, Appellant, v. Charles Birt

No. 40374

Supreme Court of Missouri

October 13, 1947

Appeal from DeKalb Circuit Court; Hon. Richard B Bridgeman, Judge.

Retransferred to Court of Appeals.

Alcid Bowers and Sterling P. Reynolds for appellant.

John J. Robison for respondent.

Bradley C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to recover $ 3,500 actual and $ 3,500 punitive damages for an alleged illegal arrest and imprisonment. A motion to dismiss was sustained; the cause was dismissed and plaintiff appealed to the Kansas City Court of Appeals. That court reversed the judgment of dismissal and remanded the cause. Lieffring v. Birt (Mo. App.), 154 S.W.2d 597.

After remand the cause was tried and the verdict of the jury was for defendant. Motion for a new trial was filed, but overruled, and plaintiff again appealed to the Kansas City City Court of Appeals. The notice of appeal recited that the appeal was "from the verdict, judgments, decisions and decrees entered on this action." The court of appeals, on its own motion, dismissed the appeal because the transcript did not contain a copy of the judgment [Lieffring v. Birt (Mo. App.), 200 S.W.2d 606], but certified the cause to the supreme court because the opinion was in conflict with an opinion of the St. Louis Court of Appeals in Whealen v. St. Louis Soft Ball Assn. (Mo. App.), 198 S.W.2d 371. The St. Louis Court of Appeals held, in the Whealen case, that absence of a copy of the judgment in a transcript could only raise a procedural question, while the Kansas City Court of Appeals held that such was jurisdictional.

The St. Louis Court of Appeals certified the Whealen case to the supreme court because the opinion was in conflict with the opinion by the Kansas City Court of Appeals in Bales v. Jefferson City Lines (Mo. App.), 192 S.W.2d 27, in which case the ruling on the question was the same as in the present case. The ruling here in the Whealen case was that such question was procedural and not jurisdictional. Whealen v. St. Louis Soft Ball Assn., 356 Mo. 622, 202 S.W.2d 891. After ruling the question this court said [202 S.W.2d l.c. 893]:

"Under Rule 1.03 permission is given and any appellate court in Missouri is vested with a wide discretion to require or not to require the clerk of the trial court to send up any papers, documents or exhibits in any cause then pending on appeal in such appellate court. Such discretion the appellate court may exercise to send for any portion of the transcript inadvertently omitted, and thus prevent a miscarriage of justice. It may in the exercise of such discretion refuse and decline to make any requirement whatever of the clerk of the trial court. The appellate court may, in its discretion, refuse to permit counsel to supply the deficiency in the transcript out of time as did the Court of Appeals in Bales v. Jefferson City Lines, supra. However, if the appellate court having exercised its discretion to call upon the clerk of the trial court to supply a deficiency in the transcript, and such omission having been supplied by such clerk, or supplied by counsel with the court's permission, then has before it a 'full transcript', the appellate court then has sufficient upon which to proceed upon the merits of the appeal."

It appears in the file of the present case (in a paper filed here by appellant) that no judgment was actually entered of record on the verdict. Sec. 116 of the code (Laws 1943, p 388) provides that "the judgment shall be entered as of the day of the verdict." It is common knowledge that such simple judgments as would be the judgment in this case are entered by the clerks of the trial courts without looking to counsel for preparation of form. The failure to enter the judgment in the trial court was likely a mere oversight of the clerk. It will be noted from the above quoted excerpt from the Whealen case that the appellate court may exercise its discretion "to send for any portion of the transcript inadvertently omitted and thus prevent a miscarriage of justice." Appellate courts should not abuse that discretion. An order of the appellate court to the clerk of the trial court to enter the judgment and send up certified copy, in such situations as here, would result in the entry of the judgment "as of the day of the verdict" which the statute requires the clerk to enter, and the certified copy sent to the appellate court would complete the transcript in accordance with the actual situation. The time in which to appeal is reckoned from the date of the judgment as fixed by Sec. 116 of the code. Woods et al. v. Cantrell et al., 356 Mo. 194, 201 S.W.2d 311. And we might say that in such situations as here, where the judgment to be entered is simple, we can perceive of no reason why the formality of a nunc pro tunc order should...