Longmire v. Diagraph-Bradley Stencil Mach. Corp.

• Decision Date: 25 June 1943
• Parties: John R. Longmire, Respondent, v. Diagraph-Bradley Stencil Machine Corporation, Appellant
• Court: Missouri Court of Appeals

173 S.W.2d 641

237 Mo.App. 553

John R. Longmire, Respondent, v. Diagraph-Bradley Stencil Machine Corporation, Appellant

Court of Appeals of Missouri, St. Louis District

June 25, 1943

Motion of Appellant to Reverse Judgment and Remand Cause for a New Trial.

Motion denied.

Wayne Ely for appellant (movant).

(1) Respondent's contention that appellant (defendant) will not be prejudiced by a denial of its motion is unsound. Appellant has not abandoned, and has no intention of abandoning, any of the assignments of error in its motion for new trial, several of which cannot be properly presented to this court without a transcript of the testimony. In four thereof defendant complains of error in admitting testimony in behalf of plaintiff, including the complaint that plaintiff's witness Jones, a broker, was permitted, over defendant's objections, to testify "to opinions and conclusions as to the right of plaintiff to receive payment or compensation." (2) Respondent's argument as to defendant's alleged delay in bringing the case to an appeal should not receive serious consideration. The events mentioned by respondent occurred before the motion for a new trial was passed on, which was overruled on February 1st, and the reporter died twelve days later. The bill of exceptions was ordered on the day the motion was overruled. That the motion was passed several times was due to the failure of the reporter to furnish the transcript of Longmire's testimony, which was ordered the day the motion was filed. (3) Respondent's contention that appellant has not made a sufficient showing of diligence in preparing a bill of exceptions is without merit. It is true that respondent offered to cooperate with appellant in agreeing upon a transcript, but appellant's counsel does not have sufficient notes from which to prepare an adequate transcript and cannot prepare one from memory. While the written evidence is available, various objections were made to the admission of most of the exhibits; and the arguments of counsel and remarks of the court in connection therewith are not available. Appellant made every reasonable effort to have other court reporters read the deceased reporter's notes of the trial, but without avail. (4) In State v Thompson, 130 Mo. 430, cited by respondent, the facts involved were unlike those here present. In State v McCarver, 113 Mo. 602, where the stenographer destroyed his notes and could not reproduce the testimony, the court finding the defendant could not file a proper bill of exceptions, reversed and remanded the cause. In Woods v Bottmos (Mo. App.), 206 S.W. 410, where the stenographer's notes were destroyed by the burning of the courthouse, the court, comparing the McCarver and Thompson cases, followed the former and sustained the motion to reverse and remand. For the same reason the case of Todd v. Security Insurance Co. (Mo. App.), 206 S.W. 412, was reversed and remanded. In Robinson v. Burton (Mo. App.), 139 S.W.2d 942, 947, the court held it could not pass on the weight and value of evidence presented in a stipulation of counsel. (5) We submit that appellant's inability to file a bill of exceptions is due to no fault of its own; that the questions of error presented in its motion for new trial and which it intends to present to this court cannot properly be decided without a bill of exceptions; that appellant has not been guilty of neglect; that it is entitled to have a complete record of the case as tried in the circuit court; and that no such complete record is available or can be made except by another trial.

R. Walston Chubb for respondent, in opposition to motion.

(1) Appellant will not be prejudiced by denial of the motion. Upon argument of the motion for new trial appellant considered only one point worthy of argument, namely, the sufficiency of the evidence that defendant (appellant) had requested that the service be rendered. Appellant caused a transcript to be written up of the testimony of plaintiff, consisting of ninety-three pages. Appellant's witnesses are available. The deposition of appellant's president, a witness below, was taken and is available; and all of the written evidence, constituting of eighteen exhibits, mostly letters between the parties, is available. (2) Failure of appellant to obtain a transcript prior to death of the reporter may be ascribed in part at least to his own delays in bringing the case to an appeal. (3) Appellant has not shown due diligence or taken advantage of respondent's offer to prepare a bill of exceptions adequate for the consideration of all the important issues in the case. (4) The destruction of the shorthand notes of the official stenographer does not as a matter of law entitle a party to a new trial. Whether a judgment should be reversed and the cause remanded on a ground of this kind depends upon the facts and circumstances of the particular case and is a matter within the sound discretion of the court to be dealt with upon equitable principles. In Scharff v. Holschbach, 296 S.W. 469, where the court stenographers had destroyed their notebooks, this court, applying the foregoing principles, sustained a motion to reverse and remand. The court found that the appellants (plaintiffs) were free from fault or negligence and had been diligent in attempting to have a bill of exceptions prepared, placed importance upon the fact that defendant's counsel admitted that he could not have prepared a bill without the stenographers' notes, and said that the record was voluminous. The facts of the case are unlike those here present. In Stevens v. Chapin, 227 S.W. 874, where the stenographers' notes were destroyed when the courthouse burned, the Kansas City Court of Appeals, applying the principles above mentioned, overruled a motion to reverse and remand, holding that there was a lack of effort to prepare or agree upon a bill of exceptions, and that it did not appear that it would have been impossible to get up a bill had such effort been made. That court, in Green v. Kansas City, 77 S.W.2d 652, applied the same principles to a different state of facts and held that the cause should be reversed and remanded. The Supreme Court recognizes the rule that each case of this nature rests upon its own facts and should be determined upon the equitable principles. In State v. McCarver, 113 Mo. 602, where the clerk had refused to prepare a transcript unless his fee were advanced and the stenographer had destroyed his notes, the court reversed the judgment and remanded the cause. In State v. Thompson, 130 Mo. 438, the court overruled a motion to reverse and remand based on the fact that the stenographer died about a month after the trial without having transcribed his notes and no one else could read them; the court holding that it did not appear that a bill of exceptions could not have been prepared containing the substance, at least, of the testimony. In Woods v. Bottmos, 206 S.W. 410, where the stenographer's notes were destroyed by the burning of the courthouse, the Kansas City Court of Appeals, upon the authority of State v. McCarver, supra, sustained a motion to reverse and remand, holding that the situation presented was unlike that in the Thompson case. In Larson v. Shockley, 231 S.W. 103, and McDowell v. Bimel-Ashcraft Mfg. Co., 9 S.W.2d 643, the Springfield Court of Appeals applied the principles stated above. Applying such principles to the facts of this case, appellant's motion to reverse the judgment and remand the cause should be overruled.

Hughes, P. J. McCullen and Anderson, JJ., concur.

OPINION

HUGHES

Appellant has filed a motion to reverse and remand this cause, wherein it is alleged that the cause was tried in the circuit court on October 26th and 27th, 1942, resulting in a verdict and judgment for the plaintiff (respondent); that on October 29, 1942, defendant (appellant) filed its motion for a new trial, which motion was overruled on February 1, 1943, and on March 23, 1943, the defendant filed its affidavit for appeal, which appeal was duly allowed to this court. That the official court reporter, who had taken down in shorthand all of the proceedings and testimony given in the trial, died on February 13, 1943, and others are unable to read the shorthand notes. The motion then sets out at length the assignments of error which were contained in the motion for new trial, and prays that this court reverse the judgment and remand the cause.

That appellant is seriously inconvenienced and hampered in the perfection and presentation of its appeal, by reason of the death of the court reporter, cannot be gainsaid by anyone familiar with appellate procedure. On the other hand, the respondent, who is in no manner responsible for appellant's unfortunate situation, would, by a reversal and remanding of the case, be greatly wronged, in that he would lose a judgment in his favor in the face of the fact that every inference and presumption is that it is a valid judgment.

At common law the losing party had no right of appeal, and his only remedy was by an equitable action if the judgment was the result of fraud, accident or mistake. Under our statutes every losing party does have the right to appeal, and to have his case reviewed as to the law by an appellate court, such losing party having saved and preserved exceptions to adverse rulings of the trial court in the manner provided by statute (Section 1174 et seq., R. S. 1939), and such appeal is circumscribed by the express mandate that the judgment shall not be reversed unless the appellate court believe that error was committed by the trial court against the appellant, and materially affecting the merits of the action. [Section 1228 R. S. 1939.] And the burden is on the complaining party to show that the error was...