Manthey v. Kellerman Contracting Co.

• Decision Date: 04 December 1925
• Docket Number: No. 25777.,No. 23934.,23934.,25777.
• Citation: 277 S.W. 927
• Parties: MANTHEY v. KELLERMAN CONTRACTING CO.
• Court: Missouri Supreme Court

277 S.W. 927

MANTHEY v. KELLERMAN CONTRACTING CO.

No. 23934.

No. 25777.

Supreme Court of Missouri, en Banc.

December 4, 1925.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Joseph Manthey against the Kellerman Contracting Company. From an order granting plaintiff's motion for a new trial after verdict for defendant, defendant appeals. Reversed and remanded.

Charles E. Morrow, W. E. Moser, and M. L. Lichtenstadt, all of St. Louis, for appellant.

W. H. Douglass, of St. Louis, for respondent.

LINDSAY, C.

In the foregoing cause here for determination, there is involved the proceeding on appeal between the same parties, numbered 25777, as a matter incidental and subsequent to this cause. By agreement and order the later proceeding has been consolidated with this for hearing and determination. The relation of the two is such that the facts and the questions raised in the incidental proceeding are made matters preliminary to the determination of this appeal.

This is a suit for personal injuries, wherein the jury returned a verdict in favor of the defendant. The trial court sustained plaintiff's motion for a new trial, and defendant appealed from the order. In his motion for a new trial, as shown by defendant's bill of exceptions, the plaintiff assigned as errors, among other things, the admission of incompetent evidence for defendant, and the giving for defendant of instructions Nos. 5, 6, 7, 8, and 9 to the admission and giving of which (the motion recited) plaintiff objected and saved his exceptions at the time. The bill of exceptions filed by defendant set forth those instructions, but did not show exceptions saved by plaintiff at the time they were given.

The trial court in its order granting a new trial stated that it was for error committed in admitting incompetent evidence for defendant, and because defendant's instruction 5 was erroneous. The court also filed at the time a memorandum, referred to in the order, and shown in the bill of exceptions, somewhat enlarging upon, and further explaining his reasons for the action taken. The cause was heard, and the new trial granted by Judge Falkenhainer, presiding in division No. 4 of the circuit court of the city of St. Louis. The order granting a new trial was made on February 21, 1922. The defendant's appeal was taken on that day, and thereafter in due time the appeal was docketed in this court. On July 19, 1923, the defendant's bill of exceptions, above mentioned, approved in writing by counsel for plaintiff, was signed by Judge Falkenhainer, and allowed by Judge Ittner then presiding as judge in Division No. 4. The cause was placed upon the docket of the October term, 1923, in Division No. 1 of this court, and set for hearing on January 5, 1924. The defendant's abstract of the record was filed December 3, 1923. The bill of exceptions as allowed to defendant is fully set forth in the abstract filed by defendant.

On December 24, 1923, the plaintiff filed in the circuit court his motion praying for a nuns pro tune order to correct defendant's bill of exceptions, so as to make it show that plaintiff had excepted to the giving of instructions Nos. 5, 6, 7, 8, and 9 for the defendant, alleging that the official reporter had noted his exceptions in the notes from which the bill of exceptions was made, but there had been failure to copy the same in the bill. On December 3, 1923, the parties filed here their stipulation for the continuance of the cause to the April term, 1924, reciting as a reason the pendency of the said motion for a nunc pro tune order, and the cause on appeal was accordingly continued. The plaintiff's motion for a nunc pro tune order was overruled. The plaintiff next, on March 6, 1924, presented to counsel for defendant plaintiff's bill of exceptions. This was a bill complete in skeleton form. It called for insertion of all the evidence which was contained in defendant's bill, and set forth defendant's instructions, and exceptions made by plaintiff at the time, to the giving of defendant's instructions Nos. 5, 6, 7, 8, and 9. It showed the motion for new trial, defendant's appeal, allowance of defendant's bill of exceptions, and called for defendant's complete bill. The certificate appended to plaintiff's bill of exceptions recited that, inasmuch as his exceptions to the giving of said instructions did not appear of record, the bill was allowed in order that such exceptions might be made a part of the record so as to be presented to the appellate court. Plaintiff's bill made no reference to the motion for a nunc pro tunc order. This bill was signed by Judge Falkenhainer, and signed and allowed by Judge Grimm, then presiding in division No. 4, on March 8, 1924. Plaintiff has filed here his abstract, and defendant has filed objections thereto. Next, the defendant filed his motion to vacate the order allowing plaintiff's bill of exceptions, pleading in his motion the terms of rule 37 of the circuit court of the city of St. Louis, concerning the manner in which bills of exceptions were to be served upon the opposite party, and the manner of their allowance, alleging violation of the rule by plaintiff's counsel and by the court, in allowing plaintiff's bill and other matters, as showing that allowance of the bill was unauthorized. Defendant's motion to vacate was overruled, and defendant appealed from the order overruling that motion and perfected that appeal, and in that proceeding filed his bill of exceptions in skeleton form, setting forth all the proceedings had, beginning with plaintiff's motion for a nunc pro tunc order, followed by the allowance of plaintiff's bill of exceptions calling for copying of the matter therein, and the proceedings subsequent thereto, and calling for incorporation therein of defendant's original bill. Pending the allowance of defendant's bill of exceptions in this incidental proceeding, the cause in chief was continued to the October term, 1924, by stipulation of the parties, to give defendant opportunity to have his second bill allowed. Defendant's appeal from the order overruling his motion to vacate the allowance of plaintiff's bill of exceptions was docketed as No. 25777. This second appeal of defendant was advanced, and was consolidated with the appeal from the order granting a new trial, and all matters pertaining to both heard and submitted together for joint determination.

The ultimate question to be determined is whether the order granting a new trial shall be affirmed or reversed. In the path toward the conclusion upon that question there have been piled up the successive layers of bills of exceptions, orders and questions raised thereon, as in the attempt of the fabled giants to "lay the high mountain Pelion on the top of Ossa." The right of appeal is of statutory origin, and the making and filing of bills of exceptions is governed by statute. The purpose of the statute is to require all exceptions taken by either party during the trial of a cause to be included in one bill. "The law now only allows one bill of exceptions." Dougherty v. Whitehead, 31 Mo. loc. cit. 257; Atchison v. Railroad, 94 Mo. App. 572, 72 S. W. 489; Pace v. Shoe Co., 103 Mo. App. 668, 78 S. W. 52. The closing sentence of section 1460, R. S. 1919, is as follows:

"All exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions."

This provision applies in an appeal from an order granting a new trial, and to the instant case, wherein the new trial is granted upon some of the grounds assigned as error in the motion. Necessarily the appeal must be taken by the party against whom the order is made. Thereupon the rule is that the appellate court will not reverse the order and judgment of the trial court granting a new trial if it can be sustained upon any ground of the motion, even though not sustainable upon the grounds specified of record by the trial court. Chandler v. Gloyd, 217 Mo. 394, 116 S. W. 1073; Emmons v. Quade, 176 Mo. 22, 75 S. W. 103; Bradley v. Reppell, 133 Mo. 560, 32 S. W. 841, 54 Am. St. Rep. 685; Hewitt v. Steele, 118 Mo. 463, 24 S. W. 440. But, in order that the respondent may have in the appellate court the benefit of the errors assigned in his motion but not specified by the trial court as grounds for sustaining the motion, the record must show that respondent excepted at the time to the rulings, upon which, in his motion for a new trial, he predicated those assignments of error. The statement in the motion as of a fact, that plaintiff excepted to the giving of the instruction at the time given, is not evidence of the thing stated. Dougherty v. Whitehead, 31 Mo. 257.

The motion further preserved exceptions theretofore saved in the progress of the trial, and if not so saved, they are of no avail to respondent in sustaining the action of the trial court upon the grounds of his motion not specified by the trial court in the order. Green v. Terminal R. R. Ass'n, 211 Mo. loc. cit. 30, 109 S. W. 715; Bradley v. Becker, 296 Mo. loc. cit. 560, 246 S. W. 561. When the record discloses the ground or grounds of the motion upon which the court granted a new trial, the burden is upon the appellant to show error in the ruling upon those grounds (Ittner v. Hughes, 133 Mo. loc. cit. 688, 34 S. W. 1110; Stoner v. Royar, 200 Mo. 451, 98 S. W. 601); but, as to other grounds therein, the effect of the order is to overrule them, and the presumption is indulged that the court's ruling is right until the respondent shows the contrary (Kersten v. Hines, 283 Mo. loc. cit. 634, 223 S. W. 586; State ex rel. v. Thomas, 245 Mo. loc. cit. 73, 74, 149 S. W. 318). Upon the latter, the burden is not upon the respondent to make the bill of exceptions but to show, if he can, from the bill of exceptions made by the appellant, that the action of the trial court in making the order was right, even though not sustainable upon the grounds specified by...