Rigler v. McClure
| Decision Date | 06 April 1915 |
| Parties | R. I. RIGLER, Appellant, v. EMMA McCLURE, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Henry B. Davis, Charles Erd, Carlisle Durfee and Loren E. Massey for appellant.
(1) The trial court properly excluded the justice's transcript offered in evidence by the defendant for the purpose of proving that the plaintiff had instituted an action in a justice's court in the State of Illinois, on the account in issue in the case at bar, against Berthell Wallis, and recovered judgment thereon against him, for the reasons First, that the transcript was certified to by the deputy clerk of the county court of St. Clair county, Illinois, in the name of the clerk of that court, and the certification was, for that reason, insufficient, as the Act of Congress relating to the authentication of the records of judicial proceedings of the court of a sister State requires that the same be attested by the clerk. 3 F. Stats. Ann. (McKinney), sec. 905, p. 37; 3 R. S. 1909, Appendix, p. 3711; Williams v. Williams, 53 Mo.App. 617; State v. Foreman, 121 Mo.App. 502; second, that there was no certification that the clerk of the county court of St. Clair county, Illinois, at the time his name and the seal of that court were affixed to the rejected transcript, was the clerk. Act of Congress, supra; third, that the excluded transcript contained merely the minutes of the proceedings before the justice of the peace, and not a copy of the records in such proceedings, and failed to show that the account sued on was the same account as that in issue in the case at bar; fourth, that in so far as said transcript contained any evidence that the plaintiff had instituted an action and recovered judgment on said account against the husband of the patient, that evidence was merely cumulative, and properly excluded on that ground. Even if the transcript had been authenticated in accordance with the requirements of the Act of Congress above cited, its exclusion was harmless error, for the plaintiff readily admitted on the witness stand that he had instituted the action, and recovered judgment thereon against the husband, on whose part the law implied a promise to pay for the services in question. (2) It follows, from the foregoing, that the lower court committed error in sustaining the defendant's motion for a new trial, on the ground that competent evidence had been excluded at the trial, that the plaintiff had instituted an action and recovered judgment on the account in issue in the case at bar, against the patient's husband. Where the trial court sustains a motion for a new trial, on a ground that is not sound in law, and the record fails to disclose any ground on which the court's action can be upheld, the judgment will be reversed. Schmidt v. Railroad, 163 Mo. 645, 660; Campbell v. Railroad, 86 Mo.App. 67, 71; Thiele v. Railroad, 140 Mo. 319, 339; Putermann v. Simon, 127 Mo.App. 511, 514; Taylor v. Gossett, 114 Mo.App. 723, 727; Scullin v. Railroad, 184 Mo. 695, 709; Heintz v. St. Louis Transit Co., 115 Mo.App. 667, 673.
No brief filed for respondent.
This is a suit for the reasonable value of the services of a physician and surgeon. Plaintiff recovered, but the court set the verdict aside. From this order plaintiff prosecutes the appeal.
Plaintiff is a practicing physician in the city of St. Louis, and it appears defendant, Mrs. Emma McClure, called him to treat her sister, Daisy Wallis, who was a married woman too. The evidence tends to prove that Mrs. Wallis, whose husband was a soldier in the Philippines at the time, was quite sick at the home of her sister in St. Louis, and defendant called upon plaintiff to treat her.
There is an abundance of evidence on the part of plaintiff tending to prove that defendant, Mrs. McClue, became personally responsible to him for the reasonable value of the services rendered. On the part of defendant, there is evidence, too, tending to prove that no personal responsibility was assumed, except to pay for the first visit. Among other things, defendant sought to establish that plaintiff did not look to her for his compensation, but rather to Berthel Wallis, the husband of her sister, the patient. To this end, it is asserted that plaintiff instituted a suit in a court of a justice of the peace in East St. Louis, Illinois--that is, in St. Clair county in the latter State --and recovered a judgment against Berthel Wallis for the same services sued for here, in the amount of $ 200. It was sought to show this by the introduction in evidence of a certified copy of the docket of the justice, but the court excluded it on objection, because not properly authenticated in accordance with the Act of Congress touching foreign judgments. After the document was excluded, defendant's counsel offered to prove that he was present when the transcript was made and that the transcript is a true copy of the original record in the case, according to the records of the justice, E. P. Williams, East St. Louis, St. Clair county, Illinois, and this offer the court excluded as well. The jury having found the issue for plaintiff, the court sustained defendant's motion for a new trial and set the verdict aside on the ground, according to the order entered of record, that it erred "in excluding the evidence offered by defendant to prove that plaintiff brought suit and obtained judgment against Berthel Wallis."
The sole question for consideration relates to the ruling of the court in setting the verdict aside because it excluded the evidence offered by defendant pertaining to the suit and former recovery before a justice of the peace in St. Clair county, Illinois, on what is said to be the identical cause of action involved here. The evidence offered concerning this matter consists of a copy of the entries from the docket of E. P. Williams, who, it is said, is a justice of the peace of St. Clair county,...
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