McDowell v. Bimel Aschcraft Mfg. Co.
| Decision Date | 17 September 1928 |
| Docket Number | No. 4431.,4431. |
| Citation | 9 S.W.2d 643 |
| Parties | McDOWELL v. BIMEL ASHCRAFT MFG. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.
Action by Walter McDowell against the Bimel Ashcraft Manufacturing Company. From a judgment for plaintiff, defendant appeals and applies for reversal, remand, and new trial, on ground that stenographer's notes of testimony and transcript of evidence were destroyed by fire, preventing securing of bill of exceptions. Motion overruled, and appeal dismissed.
Gallivan & Finch, of New Madrid, for appellant.
John P. Griffin, of St. Louis, and J. N. Massengill, of New Madrid, for respondent.
Appellant has filed in this court a motion asking this court to reverse the judgment and remand the case for new trial on the ground that the stenographer's notes of the testimony taken at the trial and a transcript of the evidence prepared by the stenographer had been destroyed by fire and for that reason a bill of exceptions could not be prepared and filed.
The suit was one for personal injury. Plaintiff recovered $4,500. Proper steps to secure an appeal were taken by defendant, and an appeal was granted to this court. The trial was had October 14, 1927. When the order granting the appeal was made the attorney for appellant gave the court stenographer an order for the transcript of the evidence. The stenographer prepared it in a few days thereafter and had it ready for delivery, when his bill, amounting to $63.75, should be paid. The stenographer was informed that the Maryland Casualty Company, which had an office and a resident attorney in St. Louis, Mo., carried liability insurance on defendant and was paying the expenses of the defendant in this litigation. On October 27, 1927, the stenographer sent or delivered to the casualty company the following bill:
New Madrid, Mo., Oct. 27, 1927
Maryland Casualty Company, St. Louis, Mo
To W. K. Steinbreaker, Circuit Court Reporter
To Transcript of testimony taken in case
Walter McDowell v. Bimel Ashcraft Company
tried at New Madrid, New Madrid
County, Missouri, on October 14, 1927—Transcript
delivered to Attorneys Gallavin &
Finch, New Madrid........................... $63 75
The stenographer's house burned December 2, 1927, and his original notes taken at the trial and the transcript of the evidence were destroyed in that fire. The stenographer's bill had not been paid at that time, but was afterward paid by the casualty company. A number of affidavits have been filed in this court on the part of appellant tending to show diligence on its part and that it is now impossible to prepare and file a bill of exceptions, and counter affidavits have been filed tending to show that with proper effort a bill of exceptions could now be prepared and filed. The trial judge has made an affidavit stating that on account of the length of the testimony and the numerous objections thereto and the numerous legal questions that arose during the trial, it will be impossible for him to settle a bill of exceptions without the stenographer's transcript of the evidence and proceedings at the trial. Our conclusion on the evidence before us is that the preparation of a correct bill of exceptions without the stenographer's transcript of the evidence would be now, and since the destruction of the stenographer's notes and transcript of the evidence has been, impossible. All that, however, does not in and of itself entitle appellant to a reversal in order that it may have a new trial on the merits of the case. The statute makes no provision for a case of this kind, and the appellate courts have uniformly held that before an appellant can secure relief of this character, it must be made to appear to the appellate court that he is free from negligence and that he acted with due diligence in his efforts to prepare his case for hearing in the appellate...
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... ... In Larson ... v. Shockley, 231 S.W. 103, and McDowell v ... Bimel-Ashcraft Mfg. Co., 9 S.W.2d 643, the Springfield ... Court ... ...
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...S.W. 975; Stevens v. Chapin, 206 Mo.App. 594, 227 S.W. 874; Scharff v. Holschbach, 220 Mo.App. 1139, 296 S.W. 469; McDowell v. Bimel Ashcraft Mfg. Co., Mo.App., 9 S.W.2d 643; Green v. Kansas City, Mo., Mo.App., 77 S.W.2d 652; Longmire v. Diagraph-Bradley Stencil Machine Corporation, 237 Mo.......
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...for review, the court declined to reverse. This is not analogous to the instant case. Plaintiff also cites McDowell v. Bimel Ashcraft Mfg. Co., 9 S.W.2d 643 (Mo.App.1928) wherein the transcript on appeal was prepared but had not been picked up and paid for and the reporter's home burned and......