State, ex rel. Winsor v. Taylor

• Citation: 114 S.W. 1029,134 Mo.App. 430
• Parties: STATE, ex rel. WINSOR, Relator, v. TAYLOR, Respondents
• Decision Date: 15 December 1908
• Court: Court of Appeal of Missouri (US)

114 S.W. 1029

134 Mo.App. 430

STATE, ex rel. WINSOR, Relator, v. TAYLOR, Respondents

Court of Appeals of Missouri, St. Louis

December 15, 1908

Original Proceeding for Writ of Mandamus.

Writ denied.

Wm. H Clopton for relator.

(1) It was the duty of respondent, when the bill of exceptions was presented to him to act, to sign it if the same was found to be correct; and it was equally his duty if he thought the same was in any way imperfect to correct it and then sign it. He cannot be permitted to sacrifice the rights of litigants by his inaction. State ex rel. v. Field, 37 Mo.App 93. The court should have settled the bill of exceptions or signified his purpose not to do so as required by the statute within the period fixed by the order of the court extending the time for filing the bill of exceptions. State ex rel v. Withrow, 135 Mo. 381; Patterson v. Yancy, 97 Mo.App. 690; State ex rel. v. Gibson, 187 Mo. 552; Page v. Clopton, 30 Grattan 415; Swartz v. Nash, 45 Kan. 341; State ex rel. v. Gibson, 184 Mo. 507. (2) The prayer of the petition of relator is that respondent be required and directed to extend the time for filing the bill of exceptions up to and including the 10th day of July, 1908, and cause the order to be entered of record and that after the writ of mandamus is issued, and second, that respondent be directed to certify his reasons for failing and refusing to settle, sign and cause to be filed the bill of exceptions presented to him on the 23d day of December, 1907. And to do and perform all necessary and lawful acts in connection with the signing, allowing and filing of the bill of exceptions--and for such other relief as to your Honor may seem right and proper. Under the facts proven at the trial and the admissions of respondent the peremptory writ of mandamus was proper. State ex rel. v. Gibson, 187 Mo. 551; State ex rel. v. Jarratt, 183 Mo. 220.

L. Frank Ottofy for respondent.

(1) The relator's laches in failing from December 23, 1907, to January 14, 1908, to see that the bill is both (1) signed by the judge and (2) filed with the clerk, does not present a state of facts justifying this court in issuing its extraordinary writ of mandamus. The duty of performing both rests upon the appellant in any case. He cannot devolve this on the judge. State ex rel. v. Redd, 68 Mo. 109; State v. Eaton, 191 Mo. 151; State v. Seaton, 106 Mo. 198. (2) The respondent did not refuse to act. He was not requested to act until after the time for filing the bill expired and then he was asked to sign the bill or extend the time nunc pro tunc, which he then refused, being powerless. When the time expired the case was closed and cannot by the extraordinary writ of mandamus be now reopened. State ex rel. v. Gibson, 187 Mo. 549; State v. Wilson, 200 Mo. 26; Graham v. Deguire, 154 Mo. 88; Doherty v. Robb, 154 Mo. 365; Burdoin v. Trenton, 116 Mo. 370; State v. Mosley, 116 Mo. 547; State v. Paul, 203 Mo. 681; State v. Cutberth, 203 Mo. 580; Mitchell v. Williams, 79 Mo.App. 389; Bushnell & Glessner Co. v. Forman, 83 Mo.App. 71; O'Bannon v. Railway, 106 Mo.App. 318; Keyes v. Kennedy, 109 Mo.App. 644. (3) (a) Extending the time to file a bill of exceptions is, under the statute (R. S. 1899, sec. 728), discretionary with the court. Mandamus will not lie to compel a judge to exercise his discretion in a particular way. The alternative writ requiring and directing the judge to extend the time for filing bill of exceptions up to and including the 10th day of July, 1908, and to enter such an order, cannot be made peremptory and the writ must, therefore, be denied. State ex rel. v. Edwards, 11 Mo.App. 157; State ex rel. v. Field, 37 Mo.App. 100. (b) Relator must show that he had a clear and specific right to the relief claimed. This he has not done in this case. State ex rel. v. McIntosh, 205 Mo. 635.

NORTONI, J. Goode, J., concurs; Bland, P. J., dissents.

OPINION

NORTONI, J.

This is an original proceeding by mandamus. It is sought to compel the Hon. Daniel G. Taylor, one of the judges of the circuit court of the city of St. Louis, to either sign or certify why he refuses to sign the bill of exceptions in a certain case wherein the relator William S. Winsor is defendant and Edward C. C. Reisel is plaintiff. The material facts appearing in the record disclose that Reisel recovered a judgment against relator Winsor in the division of the circuit court of the city of St. Louis over which the respondent, Judge Taylor, presides. In due time, relator filed his motion for new trial. This motion was continued and finally overruled on September 30, 1897. During the same term at which the motion for new trial was overruled, on October 5, 1897, the court allowed relator Winsor an appeal, which was duly perfected to the St. Louis Court of Appeals, and granted him leave to file his bill of exceptions on or before sixty days from that date. Thereafter, within proper time, competent orders were duly made extending the time for filing the bill of exceptions until January 10, 1908. To the end of preparing the bill of exception, relator's counsel procured a transcript of the evidence in the cause from the official stenographer of the court. He made numerous erasures and insertions therein and finally submitted the bill to the counsel of his adversary for inspection. Counsel representing plaintiff in the cause did not agree to the numerous changes made in the transcript before mentioned and therefore noted his objections to the proposed bill of exceptions on a separate sheet of paper and returned the same to counsel representing the exceptor, the present relator. Relator's counsel conceded several of the objections noted by opposing counsel but declined to concede all of them; and on December 23, 1907, appeared in open court and handed the proposed bill of exceptions as prepared, together with the objections thereto by opposing counsel and his concessions to the counsel's objections, to Judge Taylor for examination. Touching the matter of what occurred in open court on December 23, 1907, and thereafter, concerning the bill and why it was not signed, Judge Taylor recited the following facts in a certificate over his signature, prepared at the request of the parties and incorporated in the pleadings here; in effect, as an agreed statement.

"I, the undersigned, Daniel G. Taylor, Judge of the Circuit Court, City of St. Louis, Division No. 2, and before whom the above-styled cause was tried, do certify that defendant's counsel presented to me the attached bill of exceptions in open court on December 23, 1907, and that on said date, and at the same time, plaintiff's counsel presented his objections to said bill of exceptions, which objections are hereto attached and marked 'B;' that thereupon I extended the time for filing defendant's bill of exceptions until January 10, 1908, by a proper order: that immediately after taking possession of defendant's bill of exceptions and plaintiff's objections thereto, I delivered the same to the court reporter with directions to examine the stenographic notes relating to this cause in the light of the changes in the original transcript, and plaintiff's objections, and to report to me.

"The report of the court reporter, which is marked 'C' was delivered to me by him on or before the 6th day of January, 1908, and by me considered. Upon such consideration, I concluded I could not sign the bill of exceptions as presented for the reason that it did not correctly set out the facts. I took no further action on this matter and gave it no further consideration until January 14, 1908, when counsel for both parties pursuant to notice sent by me, appeared in court, when defendant's counsel urged the court to sign the bill of exceptions as presented, as of either the date when the same was delivered to the court, or as of some day prior to January 10, 1908, or to extend the time for filing by nunc pro tunc entry, so as to cover a date of signing and filing of the bill of exceptions; this the court refused to do. From the last-mentioned date to this the court has had the matter of signing and filing of said bill of exceptions under daily consideration, aided by counsel, with a view of determining a proper course to pursue. This certificate is made in order that facts not otherwise of record may be considered by any other court called upon to review the action of this court in the premises, and is signed in chambers on this 18th day of January, 1908.

(Signed.) "DANIEL G. TAYLOR, Judge. (Seal)."

It appears from the respondent's return and in fact stands conceded in the case that relator's counsel wholly failed to call upon Judge Taylor at any time after the proposed bill of exceptions was placed in his possession on December 23d. He made no inquiry concerning the same until notified by Judge Taylor on January 14th, four days after the time for filing the bill had expired, that he had not signed it. On that date, having received notice from Judge Taylor the relator's counsel appeared in court and proffered to concede all of the objections of opposing counsel provided Judge Taylor would sign the bill. The time for filing the bill having expired, Judge Taylor declined to affix his signature thereto for the reason he had no further jurisdiction in the premises. Relator's counsel also insisted that the court should extend the time for filing by an order nunc pro tunc, or that the judge should sign the same and permit it to be filed nunc pro tunc. This request was also declined. It appears Judge Taylor determined the bill, as then proposed, to be untrue on January 6, 1908, and declined to affix his signature thereto for that reason. The judge recites in his return that he failed to indorse on the bill that it was untrue, etc., for the...