St. Louis Law Printing Co. v. Aufderheide

• Decision Date: 11 January 1932
• Parties: ST. LOUIS LAW PRINTING CO., APPELLANT, v. BERTHA S. AUFDERHEIDE, RESPONDENT
• Court: Kansas Court of Appeals

45 S.W.2d 543

226 Mo.App. 680

ST. LOUIS LAW PRINTING CO., APPELLANT, v. BERTHA S. AUFDERHEIDE, RESPONDENT

Court of Appeals of Missouri, Kansas City

January 11, 1932

Appeal from the Circuit Court of Gasconade County.--Hon. R. A Breuer, Judge.

AFFIRMED.

Judgment affirmed.

Henry E. Haas for appellant.

James Booth for respondent.

OPINION

ARNOLD, J.

Plaintiff filed its action in the circuit court seeking to recover judgment against defendant individually in the sum of $ 253 for abstracts and briefs printed by it, on behalf of relator, in the case of State ex rel. Bertha S. Auderheide, administratrix of the Estate of George F. Aufderheide, relator, v. H. L. Stolte, Judge of the Probate Court of Gasconade County, respondent, decided by this court January 3, 1928, and reported in 1 S.W.2d 209.

The petition alleges the work was performed at the request of defendant at the reasonable cost of $ 253, which defendant promised to pay. An itemized statement is attached to the petition and shows on its face the charge was made to defendant in her representative capacity of administratrix, for briefs printed in a cause in which she appears as relator.

The answer is a general denial and an allegation that the services rendered by plaintiff, as alleged in the petition, were for the estate of George F. Aufderheide, deceased; that plaintiff elected to hold said estate for the services by presenting and having its demand allowed by the probate court of Gasconade County, wherein settlement of the estate was pending.

On January 16, 1930, the cause came on for hearing before the court, a jury being waived. The evidence showed plaintiff printed the abstracts and briefs, as alleged, and that the charge was reasonable. The evidence further showed a statement of charges for the printing was filed in the probate court of Gasconade County, notice having been waived by the administratrix, as a claim against the estate of George F. Aufderheide, deceased, and that it was allowed and placed in class 6. There was evidence that the estate was still open and this claim unpaid; that no objection was made by plaintiff to the allowance of the claim or its class. The evidence further showed the printing was done at the request of Frank J. Quinn, an attorney then representing defendant in her capacity of administratrix of the estate of her deceased husband, and that he assisted in having the claim allowed against the estate.

Defendant's evidence consisted of several exhibits, not set out in the record, but which appear to have related to papers passing between plaintiff and Mr. Quinn. The account which was allowed by the probate court is in the record and charges to Bertha S. Aufderheide, as administratrix of the Estate of George F. Aufderheide, deceased, the sum of $ 253 for abstracts and briefs printed in the case of State ex rel. Auderheide, administratrix, etc., Relator, v. Stolte, Judge of Probate, Respondent. At the close of plaintiff's case, the defendant asked and the court gave a declaration of law to the effect that plaintiff is not entitled to recover under the pleadings and the evidence; further declaring that by presenting the account sued on to the probate court, and having the same allowed and classified, plaintiff thereby elected to hold said estate for said bill, and cannot now repudiate that election by holding defendant for said bill, or by splitting its cause of action with reference thereto. The court then found for defendant on the issues.

Two days later, on January 18, 1930, the court adjourned for the term, and on the same day plaintiff's counsel prepared in St. Louis and sent by registered mail to the clerk of the circuit court a motion for a new trial which the clerk received and receipted for on January 20, 1930, but filed as of January 18, 1930. The motion coming on for hearing at the May term, 1930, on May 12th, the court ordered that the filing date be corrected to read January 20, 1930, the true date of its reception and filing by the clerk. Thereupon plaintiff filed a motion for entry nunc pro tunc, supported by affidavit of its counsel, showing filing of motion for new trial as of January 18, 1930. The defendant filed a motion to strike from the files the motion for new trial on the ground that it was filed out of time, that is, after the court had adjourned for the term at which the judgment was rendered. The trial court heard evidence on these motions to the effect that the motion for a new trial was mailed in St. Louis on January 18, 1930, received by the clerk on January 20, 1930, and by him marked filed as of January 18, 1930. The court denied the motion for a nunc pro tunc entry and sustained defendant's motion to strike from the files the motion for a new trial. From these rulings, plaintiff appeals.

Appellant makes seven assignments of error which fall naturally into two groups, (1) that the trial court erred in striking plaintiff's motion for a new trial from the files and (2) that the court erred in its rulings and in finding for defendant. It is argued that when plaintiff deposited its motion for a new trial in the United States mails before the adjournment of the January term, 1930, of the circuit court of Gasconade county, properly addressed and with the postage prepaid, this constituted, in legal contemplation, constructive delivery to the clerk of said court; that the Code of Civil Procedure is to be liberally construed in the interest of justice and it is not necessary that a paper sought to be filed should have on it the clerk's filing mark; that the intention to file is the principal thing to be considered. The reasoning of plaintiff on this point is that, since the code requires that "pleadings shall be liberally construed with a view to substantial justice between the parties," and admonishes the court "to distinguish between form and substance," the trial court arbitrarily refused to exercise such discretion in striking from the files plaintiff's motion for a new trial. The liberal construction which plaintiff seeks to invoke refers to the pleadings themselves, and not to the date or manner of their filing.

Section 1005, Revised Statutes 1929, provides:

"All motions for new trial and in arrest of judgment shall be made within four days after the trial, if the term shall so long continue; and if not, then before the end of the term."

It has been held in numerous cases that the statutory provision quoted is mandatory, and that it must affirmatively appear from the record that the motion was filed within the statutory time. [City of St. Louis v. Boyce, 130 Mo. 572, 31 S.W. 594.] The trial court rightly exercised its power in directing the clerk to correct the date of filing of plaintiff's motion for new trial, endorsed on the back thereof, as of January 20, 1930, which was the undisputed fact.

Plaintiff also argues that, since the Legislature contemplated giving an aggrieved party four days, meaning four working days and excluding Sundays and holidays, the plaintiff's motion having been mailed on the second day after judgment, and having reached the clerk on the third business day after judgment, was in time. This does not take cognizance of the limitation placed by the Legislature upon the four-day provision that, in any event, the motion shall be made before the end of the term. Plaintiff argues the motion shall be "made" not "filed," and that the motion was "made" on the second day; that it had to be "made" before it could be filed.

"The word "made" is not synonymous with "prepared" in this statute, but with the word "filed." Further, plaintiff contends the act of depositing the motion for a new trial in the mails, properly addressed to the clerk on January 18, 1930, before the court adjourned for the term on that day, was a "delivery" of the motion to the clerk and that the trial court should so have held. Plaintiff cites a number of cases holding, in effect, that the placing of an insurance policy in the mails by the insurance company is a "delivery" of the policy to the insured. This is on the theory that the policy passes out of control of the insurer and into control of the insured, when placed in the mails. But no case is cited which holds the placing of a motion for a new trial in the mails, addressed to the clerk of the court, is a filing of the motion and we have not been able to find any. On the contrary the decisions in this State hold the word "filing" means both a delivery to the court or clerk and acceptance for the purpose intended.

Our Supreme Court has discussed the meaning of the word "file" in State ex inf. Simrall v. Clardy, 267 Mo. 371, 185 S.W. 184, l. c. 383, saying:

"The word 'file' is a form of the Latin word which signifies a thread, and is suggestive of the manner in which those papers and documents not considered of sufficient importance to justify spreading upon the record, were strung for preservation. A distinguished author defines the word 'file' as follows: 'To file, and filing, mean the act either of the party in bringing the paper and depositing it with the officer, for keeping, or the act of the officer in folding, indorsing and putting up the paper.' (Abbot's Law Dictionary.) Another distinguished legal lexicographer, Bouvier, under the same title defines it as follows: 'In the sense of a statute requiring the filing of a paper or document it is filed when delivered to and received by the proper officer to be kept on file.'"

In the case of Holman v. City of Macon, 177 S.W. 1078, l. c. 1080, this court said:

"Defendant on the last day allowed for such motions (for rehearing) telegraphed it to our clerk, and two days thereafter put it in writing and filed it. While telegrams are frequently used as evidence in appropriate...