State ex rel. Larue v. Hitchcock

• Decision Date: 04 February 1913
• Citation: State ex rel. Larue v. Hitchcock, 171 Mo.App. 109, 153 S.W. 546 (Mo. App. 1913)
• Parties: STATE ex rel. ALICE LaRUE, Relator, v. GEORGE C. HITCHCOCK, Judge, Respondent
• Court: Missouri Court of Appeals

153 S.W. 546

171 Mo.App. 109

STATE ex rel. ALICE LaRUE, Relator, v. GEORGE C. HITCHCOCK, Judge, Respondent

Court of Appeals of Missouri, St. Louis

February 4, 1913

Original Proceeding by Mandamus.

WRIT MADE PEREMPTORY.

STATEMENT.--The relator presented to one of the judges of our court, in vacation and at chambers, a petition for a writ of mandamus against the Hon. George C. Hitchcock, one of the judges of the circuit court of the city of St. Louis. In the petition for the writ it is set out that relator, as plaintiff, had brought her action against one Theodore T. Bland, as defendant; that that action was in due course assigned to the division of the circuit court of the city of St. Louis of which Hon. George C. Hitchcock was then judge presiding, and one A. C. Garber had been duly and regularly appointed and at the time mentioned was acting as the official stenographer of that division of the court; that after the bringing of the action and its assignment to the division mentioned, a motion for security for costs was filed, in opposition to which the plaintiff, relator here, filed her motion to sue as a poor person. The latter motion coming on for hearing was sustained by the court, as provided by section 2261, Revised Statutes 1909. Thereafter and in due course the cause coming on for trial before the Hon. George C. Hitchcock, as judge, and a jury, and the evidence of the plaintiff, relator here, having been heard, the court announced that he would sustain a demurrer to the evidence, and plaintiff electing to stand on her evidence, the court sustained the demurrer and directed the clerk of the court to enter up judgment for defendant and discharged the jury from further consideration of the case without any verdict whatever having been returned by the jury and without a peremptory instruction for the jury to return a verdict in favor of defendant. That plaintiff, relator here duly excepted to this action of the court and thereafter and in due time filed her motion for a new trial and to set aside the judgment, as well as a motion in arrest of judgment, all of which motions were overruled and exception saved. This at the June, 1912, term of the court. That during the same term plaintiff, relator here, filed her affidavit and prayed an appeal to this court, which appeal was allowed, plaintiff relator here, being granted ninety days within which to file her bill of exceptions. That afterwards, and within that time plaintiff, petitioner here, applied through her attorney of record to Mr. Garber, the official court stenographer, for a full, complete and true transcript of the testimony in the cause, together with all exceptions thereto and rulings thereon; that Mr. Garber then and there refused and still refuses to furnish plaintiff, petitioner here, with such transcript unless she first pay him the fees and charges provided by law and which he claims he is entitled to receive for writing up and transcribing the testimony notwithstanding the fact that the order allowing plaintiff, relator here, to sue as a poor person was still in force and had in nowise been set aside. That thereafter plaintiff, relator here, filed her motion, asking the court for an order on the court stenographer to furnish the transcript above mentioned without requiring relator to pay him any fees or charges therefor. This motion coming on for hearing was overruled by the court, plaintiff excepting. The court still refusing to make such order, as it is alleged, the relator here avers that it is necessary for her to have the stenographic notes written out as before mentioned; that they will be lengthy and require a large amount of money to pay the fees allowed by law for them and that it is absolutely necessary that she have the evidence and proceedings at the trial, including exceptions made by her to the several rulings in the course thereof written out in order that she may be able to present a complete transcript of the evidence and of the proceedings had at the trial to this court and to bring the cause before this court. Averring that she is a poor person without means or property of any kind and unable in any way to make payment of the fees claimed by the official court stenographer, and that neither she nor her counsel have it in their power to raise the money in payment therefor, and that the stenographer has in his possession all of the notes containing the testimony and objections thereto and rulings thereon and exceptions thereto and that unless the judge of the circuit court be ordered by this court to make an order commanding the stenographer to write them out and furnish them to plaintiff, relator here, she will be wholly unable to prepare a bill of exceptions and unable to have her appeal properly reviewed by this court and will be deprived of certain remedy for the injury to her property rights, as alleged, and will be denied and deprived of the due administration of right and justice, and averring that she is without other adequate remedy, relator prays for a writ of mandamus directing the Hon. George C. Hitchcock, as judge of the division of the court in which the cause was tried, to require the official court stenographer to make out and furnish her, without cost, a full, true and complete transcript of all the testimony taken in the aforementioned cause, including the objections thereto, the rulings thereon and the exceptions thereto. The petition for the writ of mandamus is verified by the petitioner and attested by her counsel. An alternative writ was issued returnable into our court December 31, 1912. At the same time relator also filed her application in this court for leave to sue as a poor person. In due time the respondent appeared and for return to the alternative writ has filed a motion to quash it on the assigned ground that the petition is not sufficient in law. The case being passed from time to time it was suggested to the court that in the meantime the Hon. George C. Hitchcock had been transferred from Division No. 8 to another division of the circuit court and the court stenographer mentioned as acting in the former division had likewise been transferred to that division, and that by agreement of counsel, and consent of court, the cause had been transferred from the division to which it was formerly assigned to the one over which Judge Hitchcock now presides.

The motion to quash was duly submitted on oral arguments by the several counsel, they afterwards by leave also filing written arguments.

Writ made absolute.

H. C. Whitehill for relator; Charles P. Comer of counsel.

George D. Harris for respondent.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J. (after stating the facts).

--Treating the motion to quash as a return and in the nature of a demurrer to the petition, it follows that all of the allegations of the petition which are well pleaded are taken as confessed, so that these things are admitted: That the petitioner had a cause pending in the circuit court; that she was allowed by that court, on due consideration, to prosecute her suit as a poor person under the provisions of section 2261, R. S. 1909; that her cause went to trial before the Hon. George C. Hitchcock and a jury, in the division of the circuit court over which that judge presided; that one A. C. Garber, having been duly appointed thereto, was at the time acting as stenographer in that division of the court; that the trial was had and that the testimony produced and all the proceedings at the trial were taken down in shorthand by him as the court stenographer; that demand having been made on him for a full copy of his notes written out in English in longhand, he declined to make or furnish it unless his legal fees were first paid; that the circuit judge, on application for an order requiring the court stenographer to write out and deliver to the relator the copy of all the notes of the testimony taken and proceedings had at the trial, had declined to make such order; that the order allowing relator to sue as a poor person had never been revoked.

Counsel for the respective parties have furnished us with exceedingly elaborate briefs and arguments in support of their several positions. We have read and considered them carefully but do not deem it necessary to follow them in detail nor to notice all the points raised.

Under the practice as it existed prior to 1881, unless they were so fortunate in their clients or in their own financial conditions as to be able to employ stenographers or shorthand writers to attend them in court at the trial of causes, the testimony was taken down by the attorneys themselves in such manner as they best could; a few of them who were themselves skilled in shorthand-writing, taking it down in that form and the bill of exceptions was made up from these notes of the testimony and proceedings at the trial, so taken down by the attorney, sometimes helped out by the notes which the judge himself may have taken down. Hence the attorneys had in their own hands the matter necessary for making up the bill of exceptions. This in a measure may account for the former brevity of bills of exceptions, even of briefs, arguments, and opinions. The controversies that so often arose between counsel and sometimes between counsel and court over the settlement of the bill of exceptions were the occasion for the enactment of what are now sections 2030, 2031 and 2034 to 2037, then often, now rarely invoked. In the course of time, however, the art of stenography making great advances, and the use of the stenographer in the court being found to be a great saving of labor for the attorneys as well as for the judge, possibly also tending to accuracy, the office of court stenographer was created. Their first...