Louisville & N.R. Co. v. Paul's Adm'R
| Decision Date | 19 January 1951 |
| Citation | 314 Ky. 473 |
| Parties | Louisville & N.R. Co. v. Paul's Adm'r (three cases). |
| Court | United States State Supreme Court — District of Kentucky |
George Robert Paul's Administrator (W. Howard Clay), George W. Paul's Administrator (W. Howard Clay), and William Edward Paul's Guardian (W. Howard Clay) brought action against the Louisville & Nashville Railroad Company to recover for the deaths of George Robert Paul and George W. Paul and for injuries sustained by William Edward Paul when truck was struck by defendant's train at public crossing. The Jefferson Circuit, Common Pleas Branch, Third Division, of Jefferson County, Wm. H. Field, J., rendered judgments for the plaintiffs, and the defendant appealed, and the plaintiffs moved to strike the bill of exceptions from the record. The Court of Appeals, Latimer, J., held that it was proper, in considering the motion, to consider prohibition proceedings involving the same parties, and that motion was required to be sustained because of failure to file bill of exceptions within allotted time.
Motion sustained and judgment affirmed.
1. Appeal and Error. — The Court of Appeals has inherent power to consider together pending cases which have grown out of the same cause and are between the same companies, where the ends of justice in administration of the law demand it.
2. Appeal and Error. — On appeal by railroad from judgments against it in death and injury actions, Court of Appeals would consider record in prohibition proceeding involving the same parties, for purpose of passing on motion to strike bill of exceptions because it was not tendered within time allowed by statute and previous orders of court.
3. Courts. — Official court reporter is a statutory officer of the court, subject to the control and discretion of the court. KRS 28.410 et seq.
4. Courts. — In performance of duties imposed on official court reporter by law, character of the office is no different from that of the clerk or other recognized officer of the court, and a party has a right to rely on the proper performance of those duties. KRS 28.410 et seq.
5. Appeal and Error. — Where it was the custom in circuit court, different from practice followed in every other court in the state, for attorneys not to prepare a separate bill of exceptions but to have stenographer include in his transcript the instructions, argument of counsel, and other matters not within official duty or responsibility of the stenographer, such transcript, when approved by trial judge, could be used as a bill of exceptions. KRS 28.410 et seq., 28.430, 28.470; Civil Code of Practice, sections 334, 337.
6. Appeal and Error. — Where defendant, in accordance with a regular custom in circuit court, constituted court reporter its agent for filing of bill of exceptions, but reporter was unable to do so within time allotted and therefore he prepared a mere skeleton and a certificate of accuracy and completion and a certificate reciting approval of trial judge, and judge, who was blind, unknowingly approved and ordered filing of non-existent bill of exceptions, and it was not until after time allotted that bill was completed, Court of Appeals would sustain plaintiffs' motion to strike bill from record. KRS 451.150.
7. Appeal and Error. — Generally, a duly perfected appeal or writ of error divests the trial court of further jurisdiction of the cause in which the appeal has been taken.
8. Appeal and Error. — Instructions cannot be reviewed by the Court of Appeals on appeal unless they are identified by or made a part of the bill of exceptions.
9. Appeal and Error. — Where instructions are not identified by or made a part of the bill of exceptions, there remains to the Court of Appeals on appeal only a determination as to the sufficiency of the pleadings to support the verdict.
10. Appeal and Error. — Where appeal had been perfected, and record was in the hands of the Court of Appeals, and trial court had lost jurisdiction of the case, except in a very limited way, and there was pending against the trial court a writ of prohibition prohibiting the filing of an after-prepared bill of exceptions, appellant could not by nunc pro tunc order of the trial court have the instructions incorporated in the record.
H.T. Lively, J.P. Hamilton, J.L. Lenihan and James P. Helm, Jr., for appellant.
Henry L. Brooks for appellee.
Before Wm. H. Field, Judge.
Sustaining motion and affirming judgment.
The appeal is from judgments in favor of the Administrator of the estates of George W. Paul for $20,000 and of his young son, George Robert Paul, for $2,000 for their respective deaths, and in favor of the guardian of William Edward Paul, another son, for $3,000 for personal injuries, all of which were suffered when a truck in which they were riding was struck by a train on a public crossing near Coral Ridge, about ten miles south of Louisville. The cases were tried together as one.
We first heard of the case in a petition in this Court for a writ prohibiting the trial judge from certifying and approving, or rather recertifying and again approving, a bill of exceptions. It is charged in that petition that the original certification and order filing the bill are void because there was no such document in existence at the time, the official stenographer and the court having merely signed the certificate and order filing the same in anticipation of the record being made; that the court had overruled the plaintiff's motion to cancel and vacate the order and purposed to execute a recertification and make another order filing the bill after the time allowed for doing so had expired. The petition sought to prohibit that future action. A temporary writ issued. While that case in this Court was being developed, the record for the appeal with the bill of exceptions bearing the original certificate was filed. The appellees have filed (1) a motion to strike the bill because the court was without jurisdiction to file it since it was not tendered within the time allowed by the Code and previous orders of the court, and (2) another motion to consolidate the cases, the obvious purpose being to have this Court consider the evidence taken in the prohibition case in support of the motion to strike the bill of exceptions. The appellant objects to both motions. If that evidence be not considered, then the motion to strike must be overruled, for on its face the record is regular in respect of the existence of the transcript at the time and the timely certification, approval and filing. The presumption of regularity must prevail. Avery v. Davenport, 300 Ky. 865, 190 S.W. 2d 663. Verity is imported to such a degree that the certification can be questioned only for fraud or mistake. However, in its finality it would be a most ridiculous position to presume regularity here when we know, through the procedure before us to obtain the writ of prohibition, that the bill of exceptions was not in existence at the time of the approval and filing of the certification, a fact which is not and cannot be denied.
We have no specific rule with reference to consolidating cases or hearing them together, but it is often done. Rule 1.230 deals with records or prior appeals or other records already filed in this Court when made part of the record in another cause in the circuit court but not copied into the transcript of that other case. Paducah and Illinois R. Co. v. Albritton, 174 Ky. 270, 191 S.W. 879. But we take it to be an inherent power to consider together pending cases which have grown out of the same cause and are between the same parties where the ends of justice in the administration of the law demand it. It was written long ago in National Bank of Monticello v. Bryant, 13 Bush 419, 76 Ky. 419:
"This and every other court will take judicial notice of its own records as far as they pertain to the case in hand, but will not take notice in deciding one case of what may be contained in the record of another and distinct case, unless it be brought to the attention of the court by being made a part of the record of the case under consideration."
See also Maynard v. Allen, 276 Ky. 485, 124 S.W. 2d 765. It is true, the prohibition case is against the trial judge, who filed no response whatsoever. But, it will be noted that this appellant intervened as the real party in interest and became the sole respondent. To decline to consider that record in connection with the motion to strike the bill of exceptions would be to let an extreme technicality of practice prevail over the practical, and but cause the parties to retake the evidence, for we would be impelled to authorize that it be done in support of the motion to strike the bill of exceptions. The reception of evidence aliunde in support of such a motion where the official certification of a circuit clerk is challenged upon the ground of fraud of the party benefited or mistake on the part of the officer, KRS 61.060, has been recognized. Bingham v. Anderson, 199 Ky. 680, 251 S.W. 973. That is the real basis of the motion to strike the bill, though there is no suggestion of fraud or wrong doing on the part of the defendant in the case. It is only a technical fraud. The contention is, in reality, that through the failure of the official stenographer, who it is argued was the agent for the attorney for the defendant in this transaction, and the trial court to follow the procedural law as laid down in the Civil Code of Practice, the court was led into the mistake of attaching a certificate of approval and entering an order filing a nonexistent bill of exceptions. We are of the opinion, therefore, that it is right and proper that we hear or consider the cases together and accept the record of what transpired in considering the motion to strike the bill of exceptions.
The facts are not in dispute. By an...
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