Ross v. Kansas City, Fort Scott & Memphis Railroad Company

• Citation: 42 S.W. 957,141 Mo. 390
• Parties: Ross et al. v. Kansas City, Fort Scott & Memphis Railroad Company, Appellant
• Decision Date: 16 November 1897
• Court: United States State Supreme Court of Missouri

42 S.W. 957

141 Mo. 390

Ross et al. v. Kansas City, Fort Scott & Memphis Railroad Company, Appellant

Supreme Court of Missouri, Second Division

November 16, 1897

Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.

Affirmed.

H. C Timmons for respondent.

(1) Defendant having made no objections nor taken any exceptions to the action of the court in overruling its motion for a new trial, there is nothing before this court for review but the record proper. R. S. 1889, sec. 2302; State v Murray, 126 Mo. 526; Danforth v. Railroad, 123 Mo. 196; Wentzville Tobacco Co. v. Walker, 123 Mo 662; Ryan v. Growney, 125 Mo. 474; State v. Gilmore, 110 Mo. 1; Taylor v. Switzer, 110 Mo. 410; State v. Harvey, 105 Mo. 316; State ex rel. v. Hitchcock, 86 Mo. 231; McIrvine v. Thompson, 81 Mo. 647.

Wallace Pratt, I. P. Dana and J. C. Cravens for appellant.

(1) The circuit court of Barton county erred in rejecting the affidavits filed by appellant in that court on October 24, 1896, in support of its motion to amend the bill of exceptions, and in refusing to allow said amendment to be made. But the court having, in effect, found the facts stated in said motion and affidavits to be true, there can be no sort of doubt remaining that an exception was in fact taken at the time, to the action of the circuit court in overruling defendant's motion for new trial; and this court will now treat the cause as though said amendment had been allowed. Baker v. Railroad, 122 Mo. 533; State v. Howell, 117 Mo. 310; Hansbrough v. Fudge, 80 Mo. 308; Darrier v. Darrier, 58 Mo. 222; DeKalb County v. Hixon, 44 Mo. 342. (2) It is idle to say that because there was no written evidence upon the court's docket or upon the record or in the judgment roll that an exception was taken at the time, that therefore the bill can not be amended. The law does not require such entries or minutes to be made. And the affidavits conclusively show that it has never been the practice of the trial court to note or cause to be noted such things. And to say that proof of the fact of such exception being taken, can only be shown by the record of a matter that is not properly the subject of record, although it is found to be conclusively proved, is absurd and amounts to a denial of justice. It would prostitute the courts into mere engines of oppression and wrong. Hansbrough v. Fudge, 80 Mo. 308. (3) But it is insisted that there was nothing to amend by. There might be some reason in that contention if no bill of exceptions whatever had been filed. But the record proper shows one was filed. It is full and complete in all respects except the omission of the words "And defendant duly excepted" immediately following the mention of the overruling of defendant's motion for new trial. Hammer v. McConnell, 2 Ohio St. 31; Bank v. Minthorne, 19 Johns. 243; Chichester v. Cande, 3 Cow. 39, and note a; Welch v. Damon, 11 Gray, 383. (4) The defect in original bill of exceptions is purely technical, and involves a mere formal matter, and ought to be disregarded by the court under the undisputed facts in this case. Cunningham v. Wells, 16 Mo.App. 78. (5) Courts may always at subsequent terms set right mere matters of form, or correct misprisions, or mere clerical errors so as to conform the record to the truth. Bank v. Allen, 68 Mo. 474; Rockwell v. Carpenter, 25 Hun. 531; Gibbald v. U.S. 37 U.S. 492; Bank v. Wister, 3 Pet. 431; Hickman v. Barnes, 1 Mo. 156; Pockman v. Meatt, 49 Mo. 348; Loring v. Groomer, 110 Mo. 639. (6) According to several decisions of this court, if no exception to the overruling of a motion for new trial is noted in the bill of exceptions, such exception, if any was taken, will be presumed by this court to have been waived, but in none of the cases so decided was there any effort to amend the bill in the trial court in accordance with the facts. Danforth v. Railroad, 123 Mo. 196; State v. Murray, 126 Mo. 526. (7) A true and just interpretation of section 2302 of present Revised Statutes 1889 does not sustain former decisions of this court which hold that the bill of exceptions must show affirmatively that an exception was taken to the action of the trial court in overruling a motion for new trial.

Division Two: Burgess, J. Gantt, P. J., and Sherwood, J., concur. In Banc: Barclay, C. J., and Gantt, Macfarlane, Burgess, Robinson and Brace, JJ., concurring; and Sherwood, J., dissenting.

OPINION

Burgess, J.

Plaintiffs, who are the only minor children of James Ross, deceased, recovered judgment against the defendant in the circuit court of Barton county in the sum of $ 5,000, by reason of the alleged negligence of defendant, its servants and employees in the management and control of one of its trains of cars in running it over and killing deceased without any negligence upon his part contributing directly thereto.

Defendant appealed.

The bill of exceptions does not show that defendant excepted to the action of the court in overruling its motion for a new trial, and in order to correct the bill in this regard especially, this court, on the application of defendant, did on the twenty-first day of October, 1896, make an order directed to the circuit court of Barton county, commanding and directing it, "that if the bill of exceptions filed by appellant in said cause does not in fact show on its face that appellant took and saved exceptions to the action of the circuit court in overruling appellant's motion for a new trial, then that said circuit court cause the same to be amended so as to show that appellant did take and save such exceptions, provided said circuit court shall find from competent evidence that such exceptions were in fact taken and saved by appellant."

In pursuance of said order defendant on the twenty-fourth day of October, 1896, filed its motion to correct and amend said bill of exceptions so as to show that it did in fact except at the time to the ruling of the court in overruling its motion for a new trial, and upon a hearing of said motion by the court in pursuance of said order, defendant offered in evidence in support thereof the affidavits of several different persons including members of the bar, which showed that defendant by its counsel did in fact except at the time to the ruling of the court in overruling its said motion for a new trial, but which said affidavits were upon motion of plaintiff stricken out and excluded from the consideration of the court over the objection and exception of defendant. The court then overruled defendant's motion to correct the bill, but stated in its return to said order the following:

"But the court further says and returns to the Supreme Court that, except for its ruling in excluding said affidavits on the account of incompetency, it would have found therefrom the facts therein set forth to be true, and would have sustained defendant's motion to amend its said bill of exceptions. The court finds from an inspection of the defendant's bill of exceptions that it does not appear on the face thereof that defendant took or saved any exception to the ruling of the court in overruling its motion for new trial."

Defendant now insists that the court erred in rejecting the affidavits filed by it in support of its motion to amend the bill of exceptions, and in refusing to allow said amendment to be made. But that as it in effect found the facts stated in said motion and affidavits to be true, that this court should now treat the cause as though said amendment had been allowed.

It has been uniformly held by this court that unless an exception be taken and preserved by bill of exceptions to the action of the court in overruling a motion for a new trial, there is nothing before the Supreme Court for review, save and except the record proper. State v. Murray, 126 Mo. 529, 29 S.W. 590; The State ex rel. Dopkins v. Hitchcock, 86 Mo. 231; Wilson v. Haxby, 76 Mo. 345; Danforth v. Railroad, 123 Mo. 196; State v. Harvey, 105 Mo. 316, 16 S.W. 886; McIrvine v. Thompson, 81 Mo. 647; State v. Marshall, 36 Mo. 400.

Therefore, unless the court below erred in overruling the motion to correct the bill, and this court should under the evidence adduced treat it as having been corrected, defendant is in no better position than it was under the bill when first filed with the clerk of this court, having gained nothing by its effort to have the bill corrected.

The question of the power and authority of a circuit court to correct its record by nunc pro tunc entries has been many times before this court, and the rule announced seems to be that in order to justify it in so doing the record must in some way show, either from the judge's minutes, the clerk's entries, or some paper in the cause, the facts authorizing such entries. No such entries can be made from the memory of the judge, nor on parol proof derived from other sources. State v. Jeffors, 64 Mo. 378; Bank v. Allen, 68 Mo. 476; Belkin v. Rhodes, 76 Mo. 650; Saxton v. Smith, 50 Mo. 490; Fletcher v. Coombs, 58 Mo. 434; Wooldridge v. Quinn, 70 Mo. 370; Blize v. Castlio, 8 Mo.App. 294; Evans v. Fisher, 26 Mo.App. 546.

The action of the court in overruling a motion for new trial is a matter of exception, which exception is no part of the record in the cause in which made unless made so by bill of exceptions. No entry of record is made with respect to such an exception nor does it appear that any memoranda was made by the judge on his docket in this instance showing or tending to show, that defendant saved its exceptions to the ruling of the court in overruling the motion for a new trial. So that, unless parol evidence can be resorted to for facts authorizing the correction of the record, there was nothing whatever to justify the court in so doing, and this, we have seen,...