Lindsey v. Nagel

• Citation: 137 S.W. 912,157 Mo. App. 128
• Parties: LINDSEY v. NAGEL et al.
• Decision Date: 02 May 1911
• Court: Court of Appeal of Missouri (US)

137 S.W. 912

157 Mo. App. 128

LINDSEY v. NAGEL et al.

St. Louis Court of Appeals. Missouri.

May 2, 1911.

Rehearing Denied June 6, 1911.

1. APPEAL AND ERROR (§ 511)—FILING BILL OF EXCEPTIONS—TIME—EXTENSION—ORDER.

Where an order extending the time to file a bill of exceptions to the next regular term of the court contained no date, and it did not appear that it was made on or before the day limited in a prior extension order, it was unavailable, and a bill filed within the time as thereby extended may not be considered.

2. EXCEPTIONS, BILL OF (§ 40)—TIME—EXTENSION —ORDER.

Under Rev. St. 1909, § 11,245, providing that the official stenographer shall furnish to any person a transcript of all or any part of the evidence, or oral proceedings of a trial on payment of his fees therefor, an order extending the time to file a bill of exceptions reciting that, it appearing to the court that the official stenographer was unable to file the transcript within the time previously set, the court ordered that the time be extended, etc., was insufficient as authorizing the stenographer, as distinguished from the defeated party, to file a bill of exceptions within the extended time.

3. COURTS (§ 114)—RECORDS—NUNC PRO TUNC ENTRIES—GROUNDS.

An order entered nunc pro tunc can only be made on the evidence furnished by the papers and files in the case or something of record in the minute book or judge's docket as a basis by which to amend, and cannot be based on parol evidence or the recollection of the court.

4. APPEAL AND ERROR (§ 1070)—REVIEW— PREJUDICE—FORM OF VERDICT.

Where plaintiff's petition consisted of five counts, a verdict in the form of a finding for plaintiff on each of the counts separately, but assessing a recovery only on the first, was at most an informality of which defendant could not complain; it appearing that there was sufficient proof to authorize a recovery on the first count.

5. JUDGMENT (§ 265)—VERDICT—ARREST OF JUDGMENT.

An objection to the form of the verdict that it does not dispose of the issue on defendant's counterclaim must be made by motion in arrest of judgment.

6. APPEAL AND ERROR (§ 544)—DEFECTIVE VERDICT—BILL OF EXCEPTIONS.

In the absence of a bill of exceptions preserving the motion in arrest of judgment, an alleged defect in the verdict, which must be attacked by such motion, as failure to dispose of all the issues, cannot be reviewed.

7. PLEADING (§ 146)—FORM.

Rev. St. 1909, § 1806, provides that the answer shall contain, first, a general or specific denial of each material allegation of the petition controverted by the defendant; and, second, a statement of any new matter constituting a defense or counterclaim. Held, that since a counterclaim is a new and independent cause injected into the action by defendant, where plaintiff sued on an account for a quantity of stone taken from a quarry under a contract, and for violation of the contract, etc., an answer in one count admitting the making of the contract, denying the alleged breach, and averring that defendants had paid plaintiff cash according to the contract for the stone taken out between certain dates, and praying that defendants have judgment for an alleged balance, does not constitute proper pleading of a counterclaim.

Appeal from Circuit Court, Lewis County; Chas. D. Stewart, Judge.

Action by Joseph Lindsey against C. F. Nagel. Judgment for plaintiff, and defendant appeals. Affirmed.

Clay & Johnson and J. M. Jeffries, for appellant. Marchand & Rouse and E. R. McKee, for respondent.

REYNOLDS, P. J.

The petition in this case consists of five counts, the first claiming $700 on account of a quantity of stone taken out under contract from a quarry under a written contract; the second, on the same contract, alleges another violation as to the terms of it as to opening and operating the quarry. The third count, on the same contract, avers that when defendants left the quarry, they violated the terms of the contract in that they had not left it in workmanlike condition, the fourth averring that while operating under the contract defendants had destroyed some fence posts; and the fifth, also pleading under the contract, alleges that defendants so carelessly did the work that a large amount of stone was thrown on plaintiff's field, to his damage.

The answer to the first count admits the making of the contract, denies any breach, avers that defendants had paid everything they were obliged to pay under it, sets out in great detail what was done in connection with it, avers that they had paid plaintiff cash according to the contract mentioned therein, at the agreed price per cubic yard, "for all stone and rock taken out of said quarry under said contract from the 27th day of May 1904, down to and inclusive of the 23d day of June, 1904. Wherefore defendants pray judgment for said balance due them as aforesaid in the sum of $102.18, together with interest from June 23, 1904, at 6 per cent. per annum, together with costs." The answer to the second count was a general denial and a plea of performance, a specific denial of the various allegations of that count, and denial that plaintiff had suffered any damage by reason of the cause alleged in that count. The answers to the third, fourth and fifth counts were general denials followed by an allegation in answer to the fifth count that the quarry was operated in a skillful manner and that while some stone was thrown upon plaintiff's field, none of it was negligently thrown and that plaintiff's field is so close to the quarry that stone would necessarily be thrown upon the field.

The reply was a specific denial of the new matter.

There was a trial before the court and jury and a verdict returned in this form:

"We, the jury, find for plaintiff on the first count of his petition in the sum of 339.58 dollars. J. D. Shumate, Foreman.

"We, the jury, find for plaintiff on the second count of his petition in the sum of ____ dollars. J. D. Shumate, Foreman.

"We, the jury, find for plaintiff on the third count of his petition in the sum of ___ dollars. J. D. Shumate, Foreman.

"We, the jury, find for plaintiff on the fourth count of his petition in the sum of ____ dollars. J. D. Shumate, Foreman.

"We, the jury, find for plaintiff on the fifth count of his petition in the sum of ____ dollars. J. D. Shumate, Foreman."

The court, receiving the verdict, entered up judgment for plaintiff in the sum of $335.58 and costs. Defendants prayed an appeal to this court, which was granted, and the cause is here on that appeal.

We are precluded from going into an examination of the testimony in this case or the proceedings at the trial and are confined to an examination of the record proper, as we are obliged to hold that no bill of exceptions has been filed in this case within the limit of the extension of time for filing one.

After this case had reached this court, an abstract having been filed, that abstract was attacked by respondent on the ground that it did not show any proper order extending the time for filing the bill of exceptions and that the bill of exceptions had not been filed within any time granted by the trial court. The hearing of the case before us was postponed to give appellants time and opportunity to obtain a proper nunc pro tunc entry in the trial court, if that could be done. Application was made in the circuit court for a nunc pro tunc entry, showing extension of time for filing bill of exceptions, the application was granted, a nunc pro tunc entry ordered and the proceedings in the circuit court connected with that have been brought up and are now before us.

It appears that there were two cases pending in the circuit court of Lewis county, one numbered 259, in which Joseph Lindsey was the plaintiff and C. F. Nagel was the defendant; the other, the case before us, in which Joseph Lindsey was the plaintiff and C. F. Nagel and W. J. Welsh were the defendants, numbered 272 of the circuit court of that county. It appears that number 259 had never been brought to trial or disposed of, but, so far as the record of the circuit court shows, is still pending in that court. During the March, 1906, term of that court, an order was duly entered of record in case No. 272, Lindsey v. Nagel and Welsh, in these words: "It is by the court ordered that the time heretofore given defendants in which to file their bill of exceptions be and is extended to on or before the 28th day of September, 1906." This entry appears on page 445, record No. 2, of that court. The September term of that court began on Monday, the 17th of September, 1906. There further appears in this same volume 2, of the same record of the court, at page 533, this entry; "Joseph Lindsey, plaintiff, v. C. F. Nagel, defendant. Case No. 259. It appearing to the court that the official stenographer is unable to file the transcript at the time heretofore set, it is by the court ordered that time heretofore given in the above entitled cause be and the same is hereby extended to on or before the next regular term of this court." The next record entry introduced in evidence in the hearing of this application for the entry of nunc pro tunc orders in this cause before us, is in volume 3 of the circuit court records and was made at the succeeding term, that is to say at the March term, 1907, of the circuit court. That order, as entered in the case No. 272, which is the one before us, recites: "It appearing to the satisfaction of the court that the official stenographer is unable to file the bill of exceptions in the time heretofore given in which to file the same, it is hereby ordered that the time in which to file the same be and the same is hereby extended to on or before September 25, 1907." Other extensions were granted from time to time, the last made at the March, 1908, term, extending the time to September 23, 1908. These were all made and entered in the case before us, and the bill of exceptions was filed in it on ...