State ex rel. Pemiscot County v. Scott

• Decision Date: 23 March 1891
• Citation: 17 S.W. 11
• Parties: State ex rel. Pemiscot County v. Scott et al.
• Court: Missouri Supreme Court

17 S.W. 11

State ex rel. Pemiscot County v. Scott et al.

Supreme Court of Missouri

March 23, 1891

Action by the state ex rel. Pemiscot county against one Scott and another on an official bond. There was a judgment for plaintiff, which was annulled on petition in review. Plaintiff appeals. Reversed.

The decision of the majority is found in 15 S.W. 987.

Barclay, J. (dissenting. )

My dissent relates to some of the points of practice involved. They appear of importance enough to justify a few words of comment. The action is an ordinary one on an official bond. The last judgment of the circuit court was in favor of defendants. The plaintiff then moved for new trial and in arrest, but the motions were overruled. What they contained we know not, or whether any exception was taken to the final disposition of them. There is no bill of exceptions preserving them, or any of the evidence at any of the hearings. The opinion of the majority of this division reviews the record proper, and reverses the last judgment because the so-called "bill in review" (upon which the first judgment was vacated) is considered insufficient. It is held that it does not state facts sufficient to warrant the trial court in setting aside the original judgment for plaintiff. The "bill in review" was filed in a subsequent term to that at which the first judgment was entered. It was essentially a new proceeding, the object of which was to get rid of the prior adjudication. It was met by an "answer" on the part of the county. A hearing followed, and the relief asked in the "bill" was granted. No motion to set aside that result was made or exception taken. After the first judgment was thus opened the original cause proceeded. The defendants answered the petition, and, on issues so made, a trial was had, and the last judgment in the case reached. That conclusion is to be reversed for the reasons assigned by my learned associate. Without adverting to any other questions that may suggest themselves, it seems to me that the ruling announced is a misinterpretation of the law in regard to the proper functions of this court. In a case like this, our jurisdiction is strictly appellate, under the constitution. If the trial court had jurisdiction to render the judgment it assumed to pronounce, this court should not, in a civil case reverse its action upon any point not brought to the attention of that court. This seems to me the plain meaning, and, certainly, the spirit, of the Code of Civil Procedure. Rev. St. 1889, § § 2302,^[1] 2114.^[2] In criminal cases the range of review may be somewhat wider. Id. § 4297. We need not digress to state the reasons for this difference, as we are concerned now with the practice in civil cases only. That a pleading does not state facts sufficient to constitute a cause of action or defense should not, in my opinion, be regarded as a ground for reversal, unless the point was made in the trial court and erroneously ruled there. It may be that the facts, omitted in the pleading, were supplied by evidence, admitted without objection at the trial. If so, the failure to allege them could not possibly constitute an error to the prejudice of the substantial rights of the adverse party. Id. § § 2100, 2303. If facts, not at first alleged, were thus proven, it would be entirely proper for the trial court to allow them to be added to the pleading by amendment at the hearing under our statute of jeofails. Id. § § 2098, 2114. But if the adverse party, expressly or by a course of conduct at the trial, waived the necessity of such an amendment, would it be just to hear him, on appeal, to urge that, without the amendment, the pleading is radically defective? It has been sometimes remarked that errors on the face of the record proper are reviewable here without a bill of exceptions. That notion is traceable to impressions derived from a study of the ancient practice at common law; but, as above expressed, the statement is far too sweeping as applied to civil actions under our Code. Some errors, no doubt, (as, for example, those involving a total want of power to pronounce the judgment given,) may be rectified, on appeal or error, without motions or exceptions in the trial court; but many cases demonstrate that every error in the record proper is not necessarily a ground for reversal.

Even under the English practice, it was said that "a writ of error lies for some error or defect in substance that is not aided, amendable, or cured at common law, or by some of the...