Lyons v. National Surety Co.

• Citation: 147 S.W. 778,243 Mo. 607
• Parties: CHARLES LYONS, Receiver of MIDDLETON BANK OF WAVERLY, v. NATIONAL SURETY COMPANY, Appellant
• Decision Date: 09 May 1912
• Court: Missouri Supreme Court

147 S.W. 778

243 Mo. 607

CHARLES LYONS, Receiver of MIDDLETON BANK OF WAVERLY, v. NATIONAL SURETY COMPANY, Appellant

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from Lafayette Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed.

Frank Hagerman and Kimbrough Stone for appellant.

(1) Courts will interpret, not make, contracts for the parties. Indem. Co. v. Mining Co., 154 F. 554; Mining Co v. Ins. Co., 126 Mo.App. 104; Grocer Co. v. Canning Co., 129 Mo.App. 325; Diederick v. Rose, 228 Ill. 610. (2) Failure to make discovery of alleged loss, to give notice thereof, to make claim therefor or proof thereof according to the requirements of the bond. (a) Construction of bond and diligence in discovering loss. No room for construction where bond is unambiguous. Assn. v Obert, 169 Mo. 515; Finkbohmer v. Ins. Co., 6 Cal.App. 379; Cas. Co. v. Wade, 101 Tex. 102. Means of information is equivalent to having the information. Wood v. Carpenter, 101 U.S. 135; Truett v. Onderdonk, 120 Cal. 581. (b) Statute of Limitations. Discovery of loss clause. Am. Sur. Co. v. Pauly, 170 U.S. 133; Guarantee Co. v. Bank, 183 U.S. 401. Not a suit for fraud but upon contract. R. S. 1909, sec. 1888; Martin v. Knapp, 45 Mo. 48; State ex rel. v. Hawkins, 103 Mo.App. 251; McMullen v. Assn., 56 L. R. A. 924. (c) Importance of statements in application for bond. Brokerage Co. v. Fidelity Co., 44 So. 449. (3) False statements in application for bond. Willoughby v. Fidelity Co., 16 Okla. 546; Indem. Co. v. Mfg. Co., 95 F. 111; Hunt v. Fidelity Co., 99 F. 242.

Alexander Graves and Horace F. Blackwell for respondent.

(1) (a) There is no bill of exceptions before the court for each of several good reasons, infra, as shown by the abstract. Abstract, page 43: "And thereafter, upon the 22d day of December, 1910, and within the time allowed by said orders and stipulations for the filing of said bill of exceptions, the same was duly presented to said judge and by him signed, approved, ordered filed and made a part of record and was filed and made part of said record." This does not show whether it was done in term or vacation. Clay v. Pub. Co., 200 Mo. 672; Johnson v. Hodges, 65 Mo. 589; Bick v. Williams, 181 Mo. 527; Harding v. Bedoll, 202 Mo. 632. On this point no presumption indulged. Harding v. Bedoll, 202 Mo. 632; Reno v. Fitz Jarrel, 163 Mo. 413; Kolokas v. Railroad, 223 Mo. 461. (b) It does not purport to be an abstract of any record entry whetever. Stark v. Zehnder, 204 Mo. 449; Hill v. County, 195 Mo. 514; Ricketts v. Hart, 150 Mo. 68. (c) The matter in the abstract just preceding signature of circuit judge is of no value on this point. Williams v. Harris, 110 Mo.App. 540; Railroad v. Wyatt, 223 Mo. 352; Hill v. County, 195 Mo. 514; Stark v. Zehnder, 204 Mo. 449. (d) On page 348 of the abstract the words "Filed December 22, 1910. J. W. Sydnor, Clerk Circuit and ex-officio clerk Criminal Court," if genuine, have no effect whatever. Williams v. Harris, 110 Mo.App. 540; Johnson v. Hodges, 65 Mo. 589; Malloy v. Clark, 130 Mo. 211. (e) Besides, the clerk's affidavit is on file in this court denying that he wrote or authorized said words to be placed there. (f) There is a break in the alleged extensions of time for filing bill of exceptions in the abstract. This abstract contains an unusual mixture of record proper and of matter of exception, whereby "the court is put to picking and choosing, to sorting out exceptions from record entries and record proper -- guess where it is to be found and authenticated, and run a hazard of guessing wrong." Kolokas v. Railroad, 223 Mo. 461; Storage Co. v. Glasner, 150 Mo. 426. (2) The abstract of record proper is fatally defective. The record entry of the filing of bill records: "And thereafter, upon the 22d day of December, 1910, and within the time allowed by said order and stipulation for the filing of said bill of exceptions, the same was duly presented to said judge and by him signed, approved, ordered filed and made a part of record and was filed and made a part of said record." On this point we respectfully refer to what has been shown under point one, supra. (b) There is nothing to show by proper abstract the ruling on motions. On page 35 of his abstract, appellant presents the following as the entire abstract of the record of the order of the court overruling said motions for new trial and in arrest of judgment: "Whereupon, said motions being overruled by the court and defendant having excepted to each of said rulings, defendant upon the same date and during said term of court filed its affidavit for appeal to the Supreme Court of Missouri, which (omitting caption), was as follows: (See abstract, page 35.)" First. It does not purport to be a record entry. It asserts nothing concerning a court order. It is a phrase. It more especially concerns appellant's exceptions and its appeal from the judgment below. Stark v. Zehnder, 204 Mo. 449; Harding v. Bedoll, 202 Mo. 632. Second. It mingles matters of exception with matters of record. Kolokas v. Railroad, 223 Mo. 461; Owens v. Matthews, 226 Mo. 77; Hayes v. Foos, 223 Mo. 423. (c) On page 34 appears to be alleged abstract of another record entry as follows: "Whereupon, upon the same day and during the same term of said court, the defendant filed its motion for new trial and its motion in arrest of judgment. Said motions were, omitting caption and signatures, as follows: (Abstract, page 34.)" It does not hint of any record of court order allowing same to be filed. It is a mere vague statement of counsel, not hinting at any entry on the record of the court. Harding v. Bedoll, 202 Mo. 130; Barnes v. Barnes, 149 Mo.App. 549. Along with this alleged record entry are found copies of said motions, contrary to the oft repeated rule of this court. Kolokas v. Railroad, 223 Mo. 461; Stark v. Zehnder, 204 Mo. 449; Hayes v. Foos, 223 Mo. 423; Phillips v. Jones, 176 Mo. 329. (3) Alleged abstract of the record concerning pleadings; original petition, first amended petition and demurrer to second amended petition. (a) There is absolutely nothing of a proper abstract of record to show either filing of this demurrer, its disposition by the court, or, if overruled, any exceptions. (b) The original and the first amended petition are "abandoned pleadings," and constitute no part of the record of the case. Ingwerson v. Railroad, 205 Mo. 335; Bailey v. O'Bannon, 28 Mo.App. 46; 3 Cyc. 1060, note 93; Aydelott v. Collins, 43 N.E. 867; Huntington v. Folk, 54 N.E. 759; City v. Opel, 67 Mo. 394. (4) Exhibits filed with pleadings have never been held by this court as part of the "record proper." Kern v. Ins. Co., 40 Mo. 25; Peake v. Bell, 65 Mo. 224; Phillips v. Jones, 176 Mo. 329; Chambers v. Carthel, 35 Mo. 375; Matney v. Gregg, 19 Mo.App. 111; State ex rel. v. Crumb, 157 Mo. 561; Price v. Ins. Co., 58 Mo.App. 556; Hubbard v. Slavens, 218 Mo. 622; Majors v. Maxwell, 120 Mo.App. 285; Hanks v. Hanks, 218 Mo. 678. (5) (a) Second amended petition. Absolutely nothing identifies the matter printed on page 17 of the abstract, as a pleading upon which the case was tried. Nothing shows it was filed in the case. There is no hint of a record showing it was filed in any case in any court. The following appears on page 17 as an alleged abstract of record as an entirety: "That thereafter, upon the 5th day of August, 1907, plaintiff filed his second amended petition which was (omitting caption, signatures and copy of bond which was same as Exhibit A to the preceding petitions) as follows:" This is entirely futile as an abstract of record proper. No hint of a record nor of a court. Barnes v. Barnes, 149 Mo.App. 549; Harding v. Bedoll, 202 Mo. 630; Hill v. County, 195 Mo. 514. (b) On page 18 of the so-called abstract of record it will be seen by inspection that a most material allegation is omitted from the record of the second amended petition. Appellant expects the court to conjecture what is meant by "(Here follows Bond.)" Certainly this court cannot conjecture. Reno v. Fitz Jarrel, 163 Mo. 413. It might hazard a guess and guess wrong. Kolokas v. Railroad, 223 Mo. 461. (c) Besides that part of page 18 "(Here follows Bond)" destroys entire matter as an abstract proper of the record. Barnes v. Barnes, 149 Mo.App. 549. (6) Plaintiff was entitled to judgment below for the simple reason (if for no other) that the abstract of record utterly fails to show any record entry whatever that any answer was filed in the court below. There is on page 23 the following: "That thereafter defendant filed its general demurrer to said petition which being overruled, defendant upon the 12th day of August, 1907, filed its answer which was (omitting caption and signatures), as follows: (Abstract, 23.)" We submit that this constitutes no abstract of the record of any court of any case. Barnes v. Barnes, 149 Mo.App. 549; Harding v. Bedoll, 202 Mo. 630; Walser v. Wear, 128 Mo. 653. (7) Appellant cannot now amend this abstract. Harding v. Bedoll, 202 Mo. 630; Everett v. Butler, 192 Mo. 569.

KENNISH, J. Brown, P. J., and Ferriss, J., concur.

OPINION

KENNISH, J.

This is an appeal from a judgment of the circuit court of Lafayette county, in an action by Charles Lyons, receiver of the Middleton Bank of Waverly, Missouri, plaintiff, against the National Surety Company, defendant, to recover the penalty of a bond for ten thousand dollars, made by the defendant to said Middleton Bank, guaranteeing the fidelity of E. H. Lewis, cashier of said bank. By agreement of the parties a jury was waived, and at the April term, 1907, the cause was tried to the court. The trial resulted in a finding and judgment in favor of the plaintiff for ten thousand dollars, and from such judgment the defendant appealed to this court.

Plaintiff's second...