State ex rel. State Highway Com'n v. Trimble

• Decision Date: 15 March 1932
• Docket Number: 31366
• Citation: 47 S.W.2d 779,329 Mo. 987
• Parties: State ex rel. State Highway Commission of Missouri v. Francis H. Trimble et al., Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

47 S.W.2d 779

329 Mo. 987

State ex rel. State Highway Commission of Missouri v. Francis H. Trimble et al., Judges of the Kansas City Court of Appeals

No. 31366

Supreme Court of Missouri

March 15, 1932

Peremptory writ awarded.

John W. Mather, John C. Collet, Jean Paul Bradshaw and B F. Boyer for relator.

(1) Mandamus is the proper remedy to compel the Kansas City Court of Appeals to take jurisdiction for the determination on the merits of a case which it has erroneously dismissed on the theory that the appeal is not properly perfected. Art. VI Sec. 8, Amendment 1884, Constitution of Missouri; State ex rel. Light & Power Co. v. Trimble, 303 Mo. 284; State ex rel. C. R. I. & P. Ry. Co. v. Smith, 172 Mo. 446, 72 S.W. 692; State ex rel. v. Broaddus, 210 Mo. 910; State ex rel. v. Trimble, 258 S.W. 697; State ex rel. v. Public Schools, 134 Mo. 311; State ex rel. v. Neville, 157 Mo. 386; State ex rel. Bayha v. Phillips, 97 Mo. 331, 10 S.W. 855; 51 L R. A. 3; 19 American & English Cyc. of Law (2 Ed.) 385. (2) In affirming the judgment in the case of Euler v. State Highway Commission, respondents have wrongfully deprived relator of its day in court. Sec. 1028, R. S. 1929; Rule 15, Kansas City Court of Appeals. (a) Relator has been deprived of its statutory right to appeal. State ex rel. C. R. I. & P. Ry. Co. v. Smith, 172 Mo. 459; State ex rel. Wallace State Bank v. Trimble, 308 Mo. 287, 272 S.W. 72; Sec. 1028, R. S. 1929; State ex rel. Light & Power Co. v. Trimble, 291 Mo. 537; Harding v. Bedoll, 202 Mo. 625; Underwood v. Murphy, 286 S.W. 123; Rule 15, Kansas City Court of Appeals. (b) The relator has been deprived of its constitutional right to have its appeal considered. Sec. 1, Amendment XIV, Constitution of United States; Sec. 10, Art. II, Constitution of Missouri; Art. VI, Sec. 15, Constitution of Missouri; Sec. 4, Amendment of 1884, Art. VI, Constitution of Missouri; Sec. 821, R. S. 1929.

Irwin & Bushman and Ira H. Lohman for respondents.

(1) All matters now raised on mandamus were fully and finally adjudicated against relator by this court on certiorari and that judgment is a full, complete and final adjudication between the same parties, and this court will take judicial notice of its own records. State ex rel. State Highway Commission v. Trimble, Case No. 31,367, Certiorari denied June 30, 1931. (2) The abstract of the record as filed in the Kansas City Court of Appeals and attached to the original petition in mandamus in this court and marked Exhibit A is not a proper abstract of the record for the following reasons: (a) The abstract of the record fails to show that any Bill of Exceptions was signed or filed. (b) The abstract of the record fails to show the filing and overruling of motion for new trial or that the ruling on said motion was excepted to. (c) The abstract of the record fails to show the entry of any judgment. (3) Where the record proper does not show the filing of the Bill of Exceptions the bill cannot be reviewed and the recitals in the bill itself does not prove the filing. Hutson v. Allen, 236 Mo. 645; McGrew v. Foster. 66 Mo. 30; Dinwoody v. Jacobs, 82 Mo. 195; Alt v. Dines, 227 Mo. 418; Wallace v. Libby, 231 Mo. 341; Middleton v. Johnson, 242 S.W. 696; State ex inf. Barrett v. Parrish, 270 S.W. 688. (4) Where the motion for new trial was made in the Bill of Exceptions but the record proper does not show it was filed it will not be considered on appeal. Bollinger v. Carrier, 79 Mo. 318; Kansas City v. Masten, 169 Mo. 80; Hutson v. Allen, 236 Mo. 645; State ex rel. Flentge v. Sanford, 181 Mo. 134; Hays v. Foos, 223 Mo. 421; Perringer v. Unknown Heirs, 300 Mo. 535. (5) The abstract entirely omits the judgment. (6) The record proper must show all the steps taken to perfect the appeal, otherwise the appeal will be dismissed. State ex inf. Barrett v. Parrish, 270 S.W. 688; Proctor v. Trustees, 225 Mo. 51. (7) Where appellants' abstract makes no distinction between the record proper and the Bill of Exceptions and co-mingles the same the appellate court will consider only the record proper. Wallace v. Libby, 231 Mo. 341; Parkyne v. Churchill, 246 Mo. 109; Whiteley v. Watson, 178 S.W. 464; Hays v. Foos, 223 Mo. 421; Keaton v. Weber, 233 Mo. 691; Myrick v. Hamilton, 26 S.W.2d 1011; Lamonte Bank v. Crawford, 13 S.W.2d 1101; State ex rel. v. Loan Co., 291 S.W. 1081; State ex inf. Barrett v. Parrish, 270 S.W. 688; Craven v. Milling Co., 228 S.W. 513. (8) Where the original abstract of record does not show the filing of a motion for new trial during the term at which the verdict was rendered, the court, after respondent has taken exception to the abstract cannot grant leave to file a supplemental abstract setting out a record proper. State ex rel. Modern Woodmen of America v. Broaddus, 239 Mo. 366; Harding v. Bedoll, 202 Mo. 625; Evertt v. Butler, 192 Mo. 564.

OPINION

Gantt, J.

Original proceeding in mandamus. Relator petitioned for our writ of certiorari, thereby seeking to have quashed the opinion of the Kansas City Court of Appeals affirming, on motion of respondent (plaintiff), the judgment of the Circuit Court of Cole County in the case of Euler v. State Highway Commission. At the same time it also petitioned for our alternative writ of mandamus to compel said Court of Appeals to set aside the affirmance of said judgment and to consider and determine said case upon the merits. On consideration of said petitions we overruled the application for our writ of certiorari, and granted the application for our alternative writ of mandamus.

In Euler v. State Highway Commission there was judgment in favor of plaintiff. Defendant appealed to the Kansas City Court of Appeals. In due time it filed in said court an abstract of the record. Immediately plaintiff filed a motion to affirm the judgment for the reason the abstract of the record proper did not show the filing of a motion for a new trial.

Thereafter, within eight days and sixteen days before the case was set for argument in the Court of Appeals, defendant filed in said court a supplemental abstract of the record showing, among other things, that at the same term of court and within four days after verdict, defendant filed a motion for a new trial. At said time defendant also filed in said court a motion to have the supplemental abstract made a part of the abstract of the record and considered as such on a review of the case. In filing the supplemental abstract defendant (relator) proceeded on the theory that it was authorized to do so under an amendment to rule fifteen of said court adopted on March 3, 1924. The pertinent part of the amendment follows:

"If in any case a respondent or defendant in error desires to question the sufficiency of appellant's or plaintiff in error's abstract of the record because it fails to show the timely filing, . . . of the motion for new trial . . . such objections and the reasons therefor shall be served in writing on appellant or plaintiff in error, or his counsel, ten days before the day on which the cause is docketed for hearing or within ten days after the abstract is served. Any such objections not so specified shall be deemed waived and will not be considered by the court. After service of such objections and reasons, appellant or plaintiff in error shall have eight days within which to perfect his abstract of the record by filing in this court a certified copy of so much of the record proper or bill of exceptions as will show the true entries, orders or rulings with respect to which the sufficiency of the abstract of the record is challenged."

In sustaining the motion to affirm the judgment, the Court of Appeals cited its decision in Underwood v. Murphy, 286 S.W. 123, as determinative of the question. The pertinent part of the opinion in that case follows:

"1. Plaintiff has filed a motion to affirm the judgment for the reason, among others, that the abstract of the record proper, served on respondent, fails to show that a motion for a new trial was filed in the cause. The motion must be sustained, as the record proper fails to so show, although it is shown in the bill of exceptions. . . .

"2. After the motion to affirm was served and filed, defendants filed here, in connection with their suggestions in opposition to the motion to affirm, a certified copy of the record entries of the circuit court which purports to show, among other things, the filing of the motion for a new trial. This was evidently done in an effort to comply with the amendment to our Rule 15, adopted on the 3d day of March, 1924. But this is not a matter that may be corrected in this way under said rule. The abstract of the record is questioned by plaintiff because it does not show the filing of the motion for a new trial. The question we are discussing now is not as to whether the motion was filed within four days or the 'timely filing' of the motion for a new trial, as the words quoted are used in the amendment, but it is a matter as to whether there was a motion for a new trial filed at all.

"3. Plaintiff having called attention to the defect, it cannot be corrected by the defendants. [Karcher v. Jackson (Mo. Sup.) 217 S.W. 48; Brown v. O'Brien (Mo. App.), 217 S.W. 600; State ex rel. v. Bender (Mo. Sup.), 239 S.W. 833.] Defendants make no point involving anything shown in the abstract of the record proper. The motion to affirm the judgment is...