State ex rel. Concrete & Steel Construction Co. v. Southern Surety Co.
| Decision Date | 07 January 1927 |
| Citation | 294 S.W. 123,221 Mo.App. 67 |
| Parties | STATE EX REL. CONCRETE & STEEL CONSTRUCTION CO., RESPONDENT, v. SOUTHERN SURETY CO., APPELLANT. [*] |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jasper County.--Hon. Grant Emerson Judge.
Judgment affirmed.
Owen & Davis for appellant.
Robertson & Baird, for respondent.
This is an action growing out of a certain subcontract for removing a bridge on the State Highway near Houston, in Texas county. The suit is on the bond of the contractor and prosecuted in the name of the State of Missouri, for the use of the Concrete & Steel Construction Company and against W. I. Davis et al., doing business as the Davis Construction Company, and the Southern Surety Company. The cause was dismissed as to all defendants except the Southern Surety Company for lack of service and was tried during the November term, 1925, of the circuit court of Jasper county, at Carthage.
On the date the case was set for trial, defendant filed an application for continuance which was overruled. Thereupon the case was tried without a jury. After the evidence was all in, the cause was, by stipulation, transferred to the January term, 1926, of the Jasper county circuit court, at Joplin, for argument and decision. On January 23, 1926, during said January term, the court rendered judgment in favor of plaintiff in the sum of $ 1200 and defendant thereupon perfected its appeal to this court.
No term bill of exceptions was procured nor leave obtained to file such bill during the November term, 1925, when the case was tried. Respondent raises the point that appellant's failure to obtain a term bill of exceptions precludes it as to any exceptions taken during the term at which the cause was tried. The stipulation for transfer to a subsequent term kept the case in the breast of the court. This situation, in our opinion, is no different from those cases in which the motion for new trial is continued to a subsequent term in which event, it has uniformly been held, the continuance of the motion carries with it such matters of exception as fall within the purview of a motion for new trial. [Riddlesbarger v. McDaniel, 38 Mo. 138; Blanchard v. Dorman, 236 Mo. 416, 438, 139 S.W. 395; Brewing Co. v. Ehlhardt, 139 Mo.App. 129, 120 S.W. 1193; Henze v. R. R. Co., 71 Mo. 636.]
Until there was a judgment neither party could know whether he would be called upon to take steps for preserving his exceptions. This does not mean that the necessity of a term bill of exceptions has been dispensed with as to all matters. In construing section 1460, Revised Statutes 1919, the rule seems to be that exceptions taken to rulings prior or preliminary to the trial itself must be preserved by a term bill of exceptions.
But exceptions taken during the progress of the trial or hearing may be preserved by a general bill of exceptions allowed at a subsequent term when the judgment may have been rendered and the motion for new trial overruled or sustained. [Kline Cloak & Suit Co. v. Morris et al., 293 Mo. 478, 240 S.W. 96; Sweeney v. Sweeney, 283 S.W. 736; Asphalt Co. v. Ullman, 137 Mo. 543, 38 S.W. 458; Reineman v. Larkin, 222 Mo. 156 at 165, 121 S.W. 307; Stevens v. Automatic Co., 270 S.W. 414; Jones v. Evans, 80 Mo. 565.]
We are not unmindful of the ruling of the Supreme Court (en Banc) in State ex rel. Lamport v. Robinson, 257 Mo. 584, 165 S.W. 997, upon which counsel principally rely to support the point made upon the bill of exceptions. That cause was in mandamus to compel a division of the Jackson County Circuit Court to return a case to the general docket.
The Supreme Court held the remedy was by appeal and not mandamus. After so holding, the court considered relator's contention that no appeal would lie because the case sought to be returned to the general docket was commenced at one term and after the adjournment of court in course, completed at the next term before the same jury and held that there was nothing to prevent relator from obtaining a term bill of exceptions as to all exceptions saved during the first term and thereafter incorporating it into a final bill obtained at the succeeding term after judgment was rendered. The record shows exceptions were saved, but as to whether leave to file a term bill at the first term was obtained does not appear. The real question before the court was whether or not redress by appeal could be had where a cause was commenced during one term and completed at the succeeding term before the same jury. The specific question as to just what exceptions must be saved by a term bill of exceptions when a trial is begun in one term but continued into the following term, was not decided, although the language used might be construed as embracing all exceptions. The opinion in the Lamport case was en Banc and therefore, would not be supplanted by a Divisional opinion though subsequent thereto. [State ex rel. United Rys. Co. v. Reynolds et al., 278 Mo. 554, 213 S.W. 782.] The case of Kline Cloak & Suit Co. v. Morris, supra, was a divisional opinion rendered subsequent to the Lamport case and the holding therein, on which our ruling herein is based, would not, if in conflict, overturn the opinion in the Lamport case. In the Kline case the particular question here involved was before the court and the statutes were construed with reference thereto. We, therefore, feel justified in adhering to the specific ruling announced in the divisional opinion rather than in following the more general language used in the Lamport case.
It follows that defendant's bill of exceptions allowed at the January term, 1926, is proper, except in one particular. Defendant filed an application for continuance at the November term, 1925. This application was overruled and the action of the trial court thereon is assigned as error. This was preliminary to the trial and since no term bill of exceptions was obtained that matter is not before us for review under the authorities heretofore cited.
Appellant has failed to state separately errors alleged to have been committed by the trial court as required by our rule 18. While this rule has not been strictly enforced it should be observed if counsel desire all errors assigned passed upon. Under points and authorities numerous errors are assigned by defendant which we shall consider as a reasonable compliance with our rules. It is urged that plaintiff's petition fails to state a cause of action. The petition is short and we shall set out in full that portion relevant to the points raised. After stating plaintiff's corporate capacity and that of defendant surety company, the petition proceeds as follows:
It is first charged that since the name of the obligee of the bond is not stated nor any fact stated showing a right in the State to prosecute this suit for the use of plaintiff, no cause of action is alleged. In support of this proposition we are cited the following Missouri cases: Sells v. Railroad Co., 266 Mo. 155, 181 S.W. 106; State ex rel. v. Hubbard, 203 S.W. 250, 199 Mo.App. 137; Betz v. Ry. Co., 284 S.W. 455. Those cases simply hold that in statutory actions the party suing must bring himself strictly within the statutory requirements, but in none of them was the suit brought in the name of the State for the use of another, as here. It will be observed that while the petition in this case is brought in the name of the State of Missouri the petition does not state that the bond was to the State. It does allege, however, that pursuant to "the laws of Missouri relative thereto" the defendant "made, executed and delivered to said Highway Commission its bond by the terms of which it agreed to pay for "all material and supplies furnished and labor performed in or upon" the construction of the highway.
At the time this contract was let, in December, 1922, there was in existence three separate and distinct laws applicable to bonds of this character. Section 10898, Revised Statutes 1919, was in effect until December 31, 1922. [See Laws of Missouri 1st, Extra Session 1921, p. 133, sec. 2.] Section 1040, Revised Statutes 1919, was in effect and has never been repealed in any respect unless by implication; there was also in effect section 25, p. 143, Laws of Missouri, 1921, 1st Extra Session. Section 10898 (supra) does not designate to whom the bond shall be given...
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