State ex rel. Chester, Perryville & Ste. Genevieve Railway Company v. Turner
| Decision Date | 05 March 1914 |
| Citation | 163 S.W. 951,177 Mo.App. 454 |
| Parties | State ex rel. CHESTER, PERRYVILLE & STE. GENEVIEVE RAILWAY COMPANY, Respondent, v. BERT TURNER, VIRGIL McKAY, D. B. PLANKEY and W. F. SHELTON, JR., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Mississippi County Circuit Court.--Hon. Frank Kelly Judge.
REVERSED AND REMANDED.
Reversed and remanded.
J. L Fort and T. R. R. Ely for appellants.
(1) The filing of a paper is the actual delivery of the paper to the clerk without regard to any action that he may take thereon and does not consist of the marking put on it by the clerk, but in placing it as a permanent record in the office, or case, where it belongs. Indeed the endorsement of the fact of filing is only evidence that such filing has been made; and but only evidence thereof. Lent v. Co., 130 N.Y. 504; Jones v. Wells, 3 Tex. App., Sec. 94; Grubbs v. Cones, 57 Mo. 83; State v. Hockaday, 98 Mo. 590; Vettison v. Budd, 21 Ark. 578; Thompson v. Foster, 6 Ark. 208; Jacksonville v. Walton, 42 Fla. 54; Oats v. State, 153 Ind. 436; Powers v. State, 87 Ind. 144; Graham v. Summers, 25 Minn. 81; State v. Heth, 60 Kan. 560; In re Dewar, 10 Mont. 426; Bishop v. Cook, 13 Barb. 326; King v. Penn. 43 O. St. 57; Nimmons v. Westfall, 33 O. St. 213; Hains v. Lindsey, 4 Ohio 88; Starkwether v. Bell, 12 S.D. 146; Franklin v. State, 24 Fla. 55; Newman v. Clayburn, 40 S.C. 549. (2) The only official act within the power of the clerk to perform with regard to the entry of the filing of the bill of exceptions in the "vacation record" was to make a certified copy. It cannot be maintained that the clerk was acting officially in writing the letter and in talking over the telephone to respondent's attorney. 7 Cyc. 219-232; People v. Leaton, 13 N.E. 241; Reno v. McCully, 22 N.W. 902; Mallory v. Ferguson, 32 P. Rep. 410; Lick v. Madden, 95 Am. Dec. 175; State v. White, 152 Mo. 416; State v. Daily, 4 Mo.App. 172; State v. Moeller, 48 Mo. 331; Winn v. McCuney, 46 S. Rep. 854. (3) While it is the object of the law to compensate a party for all damages which may result to him from the injury complained of yet where such injuries are remote, contingent, or speculative and do not directly follow from the injury or breach they will be denied. Brink v. Co., 160 Mo. 87; Champion v. Co., 123 Ill.App. 20-24; 13 Cyc. 25-35; 34 Cyc. 1200. (4) It may be conceded that Turner is individually liable to respondent for the items of damages claimed in the second count of the petition for the deceit charged therein against him resulted in damages to respondent, but the deceit charged was not "official deceit, " or deceit for which the sureties may be held liable.
Giboney Houck, James F. Green, Lane & Alexander and Davis and Hardesty for respondent.
(1) The clerk's failure to file the Callier bill of exceptions by an official entry was a breach of his bond. R. S. 1909, secs. 2029, 2685; State ex rel. v. O'Gorman, 75 Mo. 379; Howard v. U.S. 42 C. C. A. 269, 102 F. 77; Callier v. Railroad, 158 Mo.App. 249, 138 S.W. 660; LaFollette v. Thompson, 83 Mo. 199; Wilson v. Railroad, 167 Mo. 324; State v. Borders, 228 Mo. 480, 128 S.W. 737; Walner v. Wade, 124 Mo.App. 496; Fast v. Gray, 105 Mo.App. 695. (2) Prima facie, the measure of respondent's damages resulting from such breach is the amount it was compelled to pay on the Callier judgment. Weedon v. Railroad, 24 C. C. A. 249, 78 F. 591; Anderson v. Joliett, 14 La. Ann. 614; Alston v. Sharp, 70 Tenn. 515; Norman v. Vanderburg, 157 Mo.App. 488, 138 S.W. 47. (3) Appellants admit in their brief that Turner is personally liable for the damages caused respondent by his false information, and admit in their abstract that if the sureties are liable for any of the items of said damages--that is to say, the expense incurred for printing abstract, or for printing brief, or for attorneys' fees--then the recovery of the sum of $ 654.30 on the second count was reasonable. (4) The judgment of $ 654.30 on the second count should, therefore, be affirmed against the sureties, for the giving of the false information was an official act of the clerk. R. S. 1909, secs. 2029, 2683, 2685, 2697, 3085, 3852, 3853, 3854, 10698; State ex rel. v. O'Gorman, 75 Mo. 379; Howard v. U.S. 102 F. 77, 42 C. C. A. 269; Ziegler v. Conn., 12 Pa. 227; Selover v. Sheardown, 72 Am. St. Rep. 627, 73 Minn. 393, 76 N.W. 50.
This is a suit on the official bond of the circuit clerk of Dunklin county, the defendant Turner being the clerk and the other defendants the sureties on his bond. The alleged breach of his bond relates to this clerk's failure to perform the duties of his office in making a record or written notation showing the filing of the bill of exceptions in a personal injury case, entitled Rean A. Callier v. Chester, Perryville & Ste. Genevieve Railway Company, hereafter designated as the Callier case, and which was tried and judgment rendered against that defendant, relator here, in the court of which defendant Turner was clerk. The said railway company, as relator here, claims damages on the clerk's bond because the failure of the clerk to properly file the bill of exceptions and make a record thereof deprived it of the right to have its appeal in the Callier case heard in the appellate court. It claims, of course, that had such case been heard on the whole record, inclusive of the bill of exceptions, the case would have been reversed outright or at least reversed and remanded. As it was, the case was affirmed by the St. Louis Court of Appeals, Callier v. Chester, P. & St. G. R. Co., 158 Mo.App. 249, 138 S.W. 660. The damages are laid at the amount of the judgment and interest the relator was compelled to pay and the necessary costs, expenses and attorneys' fees incurred and paid in perfecting the appeal, rendered unavailing by having no bill of exceptions before the appellate court.
On the trial of the present case, the relator put in evidence and presented to the trial court and presents to this court the entire record in the Callier case, inclusive of the bill of exceptions presented to the St. Louis Court of Appeals but not considered by it, for the purpose of showing that, had the defendant clerk "filed" the bill of exceptions as was his duty to do, the Court of Appeals must have reversed the Callier damage case on the errors there shown. The opinion and judgment of the Court of Appeals in the Callier case, supra, was put in evidence to show, as it does, that the Court of Appeals refused to consider the bill of exceptions or any errors therein complained of because there was no sufficient showing that such bill of exceptions was ever filed in the trial court. The relator proceeds here on the theory that, if it was the fault of the clerk that the bill of exceptions was not filed and no such record of the filing made as would present that bill of exceptions to the appellate court for consideration and if reversible error is shown by such bill, then the trial court and now this court must say that the appellate court except for such fault of the clerk would have reversed, as was its duty to do, the judgment which was affirmed and thereby relator would have been relieved from the payment of such judgment. The defendants reply to this by saying that no reversible error is shown by the bill of exceptions and its consideration by the Court of Appeals in the Callier case would have made no difference as to affirming the judgment; that at most the case would have been reversed and remanded and on another trial Callier would have recovered as large or a larger judgment and therefore relator has lost nothing. The trial court took relator's view of the case, rendered judgment for the penalty of the bond and awarded execution for $ 6251.87.
The first and as we view it the decisive question presented here is whether the bill of exceptions in question was in fact filed in the manner provided by law, i. e., whether the clerk was guilty of any breach of official duty in reference to the filing of such bill. On this point the answer is: "Further answering herein, defendants aver that they have no knowledge, or information, sufficient to form belief as to whether the St. Louis Court of Appeals refused to pass upon, or consider, the bill of exceptions, as pleaded in plaintiff's petition, but aver the fact to be that if it be true, as alleged in plaintiff's petition, that said court did refuse to pass upon, or consider, said bill of exceptions, the same was the result of the negligence and carelessness of plaintiff in failing to make any proof in said Court of Appeals, or elsewhere, of the fact that said bill of exceptions was deposited in the office of the defendant, Bert Turner, within the time allowed by law and the orders of the court in which said cause was tried, and by the orders of the judge of said court."
There is no dispute between the parties as to the facts relative to filing the bill of exceptions in the Callier case. It is admitted by all parties that the bill was properly prepared and signed by the judge and ordered, over his signature, to be filed as part of the record in that case; that such bill was, within the time granted by the court for that purpose actually delivered by relator to the clerk at and in his office, with request and directions to file the same; and that the clerk then and there received the same and deposited and retained it in his office. He also informed relator by signing and mailing to it a writing, set out in the Callier case, supra, and by telephone that such bill of exceptions was received and filed. The bill of exceptions was used in preparing the abstract of the record of the appeal in the Callier case and was yet in the...
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