State ex rel. Guinan v. Jarrott

• Decision Date: 22 June 1904
• Parties: THE STATE ex rel. GUINAN v. JARROTT, Judge
• Court: Missouri Supreme Court

81 S.W. 876

183 Mo. 204

THE STATE ex rel. GUINAN v. JARROTT, Judge

Supreme Court of Missouri

June 22, 1904

Writ denied.

William C. Forsee and Samuel P. Forsee for relator.

(1) The peremptory writ should issue. (a) Respondent was required to sign the bill, if true. If refused because untrue, he was required to "certify thereon the cause of such refusal." R. S. 1899, secs. 727, 729; State ex rel v. Field, 37 Mo.App. 95. He did neither. He declined to sign it upon the ground, as he stated, that "the defendants object to the bill because it does not contain any of the evidence detailed at the trial." He did not then and does not now deny that it contained both findings of fact made by him, and that every recital contained in it was and is true. The bill being thus admittedly true, and seasonably presented, the duty to sign it was a merely ministerial one controllable by mandamus. State v. Logan, 125 Mo 26; Garth v. Caldwell, 72 Mo. 631; Hall v County Court, 27 Mo. 331; State v. County Court, 41 Mo. 224; State ex rel. v. Field, 37 Mo.App. 95; Collins v. Christian, 92 Va. 731; People v. Pearson, 3 Scam. 270; People v Hawes, 25 Ill.App. 326; People v. Hawes, 30 Ill.App. 94; Ex parte Crane, 5 Peters 189; Delenan v. Brandman, 5 Wend. 132; Davis v. Menesha, 20 Wis. 205; State v. Hall, 3 Coldw. 255; Ethridge v. Hall, 7 Porter 47; People v. Van Tassel, 13 Utah 9; State v. Barnes, 16 Neb. 37; High, Ex. Leg. Rem., secs. 201, 532; 534; Crane v. Judge, 24 Mich. 513; People v. Taylor, 1 App. Pr. (N. S.) 200. (b) Respondent's action in refusing either to sign the bill or to "certify thereon the cause of his refusal," prevented relator from having it signed by bystanders, assuming that the provision concerning bystanders applied. It is only where the judge denies the truth of the bill, and "certifies thereon" in what particular he deems it untrue, that the signing by bystanders is permissible. R. S. 1899, sec. 733; State ex rel. v. Field, 37 Mo.App. 95. (c) Respondent's return is insufficient. It does not deny, even generally, a single averment made by relator. It sets out no state of facts to excuse his failure to sign the bill. It is equivocal, evasive, argumentative and frivolous. State ex rel. v. Allison, 155 Mo. 325; State ex rel. v. Trammel, 106 Mo. 510; State ex rel. v. Adams, 161 Mo. 349; Williams v. New Haven, 68 Conn. 263; Harris v. State, 96 Tenn. 496. "Every distinct and material allegation in the writ, if intended to be controverted, must be denied, and the traverse must be single, direct and certain." State ex rel. v. Williams, 96 Mo. 18; State ex rel. v. Allison, supra; Haward v. Marshall, 10 Md. 451; Com. v. Commissioners, 37 Pa. St. 237. Respondent's conclusions, arguments and deductions are not admitted by relator's motion for peremptory writ. The motion contains nothing else. State ex rel. v. Adams, supra; State ex rel. v. Smith, 104 Mo. 661; State ex rel. v. Neville, 110 Mo. 345. (d) As the bill tendered respondent is admittedly a true one, and his duty to sign it merely a ministerial one, relator is entitled to a peremptory writ commanding him to sign the bill tendered. Crane v. Judge, 24 Mich. 513; State ex rel. v. Hawes, 43 Ohio St. 17; People v. Pearson, 2 Scam. 189; Springer v. Peterson, 1 Blackf. 188; Douglass v. Loomis, 5 W.Va. 542; City v. Ballard, 126 Cal. 677; Swartz v. Nash, 45 Kan. 341; 2 Snelling, Ex. Leg. Rem., sec. 1412; Page v. Clopton, 30 Gratt. 415. (2) (a) Special findings were provided for by the act of 1849; the act was repealed by the revision of 1855, and substantially re-enacted in 1889. Code, 1849, art. 15, sec. 2; R. S. 1899, sec. 695. (b) It was invariably held, under the first statute, that where the court failed, for whatever cause, to specially find the facts, a reversal was required, and this without any further inspection of or comment upon the record. Bates v. Bower, 17 Mo. 550; Davidson v. Rozier, 20 Mo. 132; Whyte v. Bennett's Admr., 20 Mo. 262; Allison v. Danton, 24 Mo. 346; Marmaduke v. McMasters, 24 Mo. 52; Ray v. Toney, 24 Mo. 602; Ragan v. McCoy, 26 Mo. 166; Foster v. Rucker, 26 Mo. 494; Parsons v. Curry, 26 Mo. 189; Bailey v. Wilson, 29 Mo. 22. (c) The purpose of the statute was "manifestly to enable parties to make a case for the revision of this court, in which the facts and law would separately appear, without requiring instructions and bill of exceptions." Bailey v. Wilson, 29 Mo. 22; Farrar v. Lyon, 19 Mo. 124; Nichols v. Carter, 49 Mo.App. 405. (d) The effect of a special finding of facts was that it stood as a substitute for a special verdict or agreed facts. It was so held under both statutes. Bates v. Bower, 17 Mo. 553; Farrar v. Lyon, 19 Mo. 123; Land Co. v. Bretz, 125 Mo. 418; Blount v. Spratt, 113 Mo. 56; Nichols v. Carter, 49 Mo.App. 404. (e) The scope of both statutes was and is broad enough to cover every "trial of a question of fact by the court," whether at law or in equity. In 1856 this court reversed and remanded an equity case for want of a special finding. Marmaduke v. McMasters, 24 Mo. 52. And the present statute is constantly applied to equity cases. Blount v. Spratt, 113 Mo. 48; Kastuba v. Miller, 137 Mo. 173; Fitzpatrick v. Waller, 68 S.W. 915. (f) The act of 1849 in terms required that the special finding should be filed -- when filed it became a part of the record proper, and was, of course, reviewable without any bill of exceptions preserving the testimony. Sutter v. Streit, 21 Mo. 160; Ragan v. McCoy, 26 Mo. 166; Bailey v. Wilson, 29 Mo. 22. Although the present statute does not in terms require such filing, such was no doubt its intent, and so it has been ruled. It is also consistently held that it must be filed prior to or at the time of the judgment, so that the aggrieved party may complain of it in his motion for new trial or in arrest. Hamilton v. Armstrong, 120 Mo. 597; Bennett Imp. Co. v. Carr, 75 S.W. 328; Freeman v. Hemenway, 75 Mo.App. 621. Where the special finding is embodied in the judgment it is held, under the present statute, that it becomes part of the record proper. Blount v. Spratt, 113 Mo. 48; Land Co. v. Bretz, 125 Mo. 423. (g) The practice under the act of 1849, where a review of the case was sought, was well settled. If the losing party was satisfied with the facts as found, but denied the correctness of the judgment based upon them, this court, assuming that the facts so specially stated were correct deductions from the detailed evidence, inquired into the correctness of the judgment as applied to those facts. No preservation of the detailed testimony was needed, because the special finding stood in lieu of the testimony. It was, pro hac vice, the testimony. But if the complaining party denied the correctness of the finding of facts, then of course the appellate court could not determine such contention unless the detailed evidence was preserved. Hayes v. Hayes, Admr., 26 Mo. 123; Bates v. Bower, 17 Mo. 553; Maguire v. McCaffrey, 24 Mo. 552; Nichols v. Carter, 49 Mo.App. 405; Freeman v. Hemenway, 75 Mo.App. 621. (h) Under either statute, and whether the appellant did or did not complain of the special finding of fact, and whether the testimony was or was not preserved by bill of exceptions, the appellate court will always examine the special finding, or agreed case, or referee's report, if seasonably made, for the purpose of determining whether or not the judgment is warranted by it, and will affirm or reverse as the situation demands. City v. Jordan, 145 Mo. 382; Land Co. v. Bretz, 125 Mo. 423; Blount v. Spratt, 113 Mo. 48; Sutter v. Rader, 149 Mo. 297; Nelson v. Withrow, 14 Mo.App. 270; Land Co. v. Ladd, 77 S.W. 324; Tufts v. Latshaw, 172 Mo. 372; Bank v. McMullen, 85 Mo.App. 142; Brown v. Appleman, 83 Mo.App. 79; State ex rel. v. Jones, 155 Mo. 570. (i) Independent of the statute concerning special findings and in the absence of a special finding, or special verdict, or agreed case, or referee's report, a bill of exceptions need only contain so much of the evidence as serves to exhibit the point complained of. But, if the complaint is that the facts are incorrectly found, then, of course, the bill must preserve all the evidence. This is true in equity cases as well as cases at law, as shown by the first case herein below cited. Many of the authorities hold that where the evidence is unnecessarily preserved and the record thus encumbered, the offending party, although he secures a reversal, will be taxed the costs. Holloway v. Holloway, 103 Mo. 285; The Barge Resort v. Brook, 10 Mo. 533; Wallace v. Boston, 10 Mo. 663; Boot Lehigh v. Knox, 12 Mo. 510; Stark v. Hill, 31 Mo.App. 109; Armstrong v. Baker, 11 Wheat. 277; Green v. Collins, 6 Iredell 139; Harper v. Minor, 27 Cal. 111; Kimball v. Semple, 31 Cal. 657; Lincoln v. Chaflin, 7 Wall. 132; 3 Ency. Plead. and Pr., pp. 416, 421; Railroad v. Stewart, 95 U.S. 279; Chambers v. Fisk, 22 Tex. 504; Smith v. Smith, 30 Ala. 642; Tyree v. Parkham, 66 Ala. 424; Sewell v. Henry, 6 Ala. 226; Ins. Co. v. Horton, 28 Mich. 173; Ex parte Jones, 8 Cow. 123; Van Dusen v. Pomeroy, 24 Ill. 289; Railroad v. Jones, 20 Ill. 221; Knowlton v. Culver, 2 Pinney (Wis.) 243; Brewer v. Strange Exrs., 10 Ala. 961; Forsyth v. Mathews, 14 Pa. St. 100; Huffman v. Hewlitt, 11 Lea 594.

E. P. Garnett for respondent.

OPINION

In Banc

Mandamus.

GANTT J.

This is an original proceeding in this court to obtain a peremptory writ of mandamus to Judge William L. Jarrott, the judge of the Seventeenth Judicial District of this State, directing and commanding him to sign a bill of exceptions tendered him by the relator, the plaintiff and appellant in the cause of Peter Guinan v. M. S. C. Donnell and Catherine E. and James L. Donnell, wherein a judgment was rendered by the circuit court of Johnson county whereof the...