State v. Broaddus

• Decision Date: 02 February 1909
• Parties: STATE ex rel. BROWN v. BROADDUS et al.
• Court: Missouri Supreme Court

115 S.W. 1018

216 Mo. 336

STATE ex rel. BROWN v. BROADDUS et al.

Supreme Court of Missouri.

February 2, 1909.

1. APPEAL AND ERROR (§ 582)—ABSTRACT OF RECORD—NARRATIVE FORM—SUFFICIENCY.

Under Rev. St. 1899, § 813 (Ann. St. 1906, p. 783), authorizing an appeal in the short form, an abstract of the record setting out the record facts in abbreviated narrative form is sufficient, and preferable to one setting such facts out by literal copy.

2. APPEAL AND ERROR (§ 1)—RIGHT OF APPEAL — STATUTORY PROVISIONS—COMPLIANCE.

There is no common-law right of appeal from a judgment of a court of original jurisdiction; the right being created by statute, and exercisable only by conforming to the statute.

3. APPEAL AND ERROR (§ 639)—JURISDICTION — INSUFFICIENCY OF ABSTRACT.

Insufficiency of an abstract may justify an appellate court in dismissing an appeal, but cannot rob the court of jurisdiction, if there is otherwise sufficient in the record on file to give it jurisdiction.

4. JUDGMENT (§ 472)—COLLATERAL ATTACK— JUDGMENT ON APPEAL.

If the appellate court has jurisdiction of a cause, it has jurisdiction to pass judgment on the sufficiency of the abstract; and, even if its judgment on that question is wrong, it is only error, and neither such judgment nor its judgment on the merits is open to collateral attack.

5. CERTIORARI (§ 64)—REVIEW—QUASHING RECORD OF COURT OF APPEALS.

The Supreme Court, in a cause brought to it on a writ of certiorari, cannot quash the record of the Court of Appeals in a cause of which it had jurisdiction, on the ground that there is error in the judgment.

6. CERTIORARI (§ 66)—REVIEW—DEFAULT JUDGMENT—VALIDITY—PRESUMPTIONS.

Where the circuit court, which is a court of general jurisdiction, renders a personal judgment by default, it will be presumed, on certiorari, to have been founded on a lawful return

of a lawful writ, and that presumption will prevail until the record is produced showing that either the writ or the service was not what the law requires.

7. CERTIORARI (§ 66)—REVIEW—VALIDITY OF JUDGMENT—PRESUMPTIONS.

Even when the record is silent as to the jurisdictional facts, the judgment of a court of general jurisdiction will be upheld, on certiorari, by a presumption that the facts existed, until the contrary is shown by an exhibition of the whole record.

8. APPEAL AND ERROR (§ 586)—APPEAL ON SHORT TRANSCRIPT—AFFIDAVIT FOR APPEAL — FILING.

On appeal on a short transcript, as authorized by Rev. St. 1899, § 813 (Ann. St. 1906, p. 783), a statement in the abstract that the record proper of the circuit court showed that the affidavit for an appeal required by statute was filed, and that on such affidavit the court made the order allowing the appeal to the Court of Appeals, was sufficient to confer jurisdiction on that court, though neither the affidavit nor a statement of its contents appeared in the abstract; no counter abstract being filed.

In Banc. Certiorari to Kansas City Court of Appeals.

Certiorari by the State, on the relation of Annie Brown, against E. J. Broaddus and others, judges of the Kansas City Court of Appeals, to review proceedings in that court. Writ quashed.

H. W. Currey, Geo. V. Farris, and W. J. Owen, for relator. John A. Eaton and E. H. McVey, for respondents.

VALLIANT, C. J.

In a suit in the circuit court of Jasper county, wherein the relator herein was plaintiff and the Consolidated Light, Power & Ice Company, a corporation, was defendant, the plaintiff recovered a judgment for $4,000, and the cause was carried by the defendant's appeal to the Kansas City Court of Appeals, where the judgment was reversed, and the cause remanded. Relator then filed her petition in this court, praying for a writ of certiorari to bring up the record in that cause, to the end that the proceedings in the Court of Appeals might be quashed. The writ issued as prayed, and in obedience to its exigency the record in that cause is now before us.

From that record it appears that the cause was carried to the Court of Appeals on what we call a "short transcript"—that is, a certified copy of the judgment and order granting the appeal—as prescribed in section 813, Rev. St. 1899 (Ann. St. 1906, p. 783), which was supplemented by a printed abstract of the record, as that section also requires. But it appears that the abstract did not contain the affidavit for the appeal, or a statement of its contents, and that is the sole point on which the relator relies to sustain the proposition that the Court of Appeals acquired no jurisdiction of the cause. The abstract does show that on the face of the record proper it appears that an affidavit for appeal was filed, and that on it the order granting the appeal was founded. We copy the following from the relator's statement of what is shown by the abstract: "The record proper filed by the appellant in said cause contained the following, relating to the appeal, printed record page 18: `Thereafter, and on December 14, 1906, the same being the twenty-third judicial day of the November term of said circuit court, said cause came on for trial upon the plaintiff's amended petition, as amended, the answer of the defendant, and the reply. A jury was duly impaneled. The testimony was offered by the parties, after which the court duly charged the jury, and said jury, on the 15th day of December, 1906, returned into court their verdict in favor of the plaintiff and against the defendant therein in the sum of four thousand dollars ($4,000). At the same term of said court at which said verdict was returned, and within four days thereafter, to wit, on the 19th day of December, 1906, the defendant duly filed herein its motions for a new trial and in arrest of judgment, which motions are set out in full in the bill of exceptions hereinafter printed, which said motions for a new trial and in arrest of judgment were, at the same term of said court, and on, to wit, December 28, 1906, overruled by the court, and within 10 days after the overruling of said motions, and at the same term of said court, the said defendant, the Consolidated Light, Power & Ice Company, filed its application and affidavit for an appeal from said judgment, which said application, within said 10 days, during the same term, and on said 28th day of December, 1906, was allowed, and said appeal granted to the Kansas City Court of Appeals, and said defendant was granted and given leave to file an appeal bond within 10 days thereafter, in the sum of eighty-five hundred dollars ($8,500), and said defendant within said time, and on the 3d day of January, 1907, filed its appeal bond, which said bond was duly approved and filed. And on said 28th day of December, 1906, said defendant was by leave of court granted and given until the 6th day of the February term, 1907, within which to file its bill of exceptions herein, and afterwards, and within the time so allowed for that purpose, and on, to wit, the 18th day of February, 1907, the court by an order of record in term time extended the time for filing said bill of exceptions until on or before March 7, 1907, and on said 7th day of March, 1907, the said defendant, the Consolidated Light, Power & Ice Company, duly filed and presented its bill of exceptions to the court, which was on that day, by the judge of said court, duly allowed, signed, and sealed, and ordered filed with the papers in this cause, and the same was on March 7, 1907, duly filed as a part of the record in this cause. Said bill of exceptions is in words and figures as follows, to wit.'" Then the relator in her petition, continuing, says: "And this is all of the said record proper relating in any way to the appellant's appeal and affidavit. The bill of exceptions, printed as part of the said record in said cause, contains the following relating to the appeal and the affidavit for appeal." Then follows a statement by relator of what the bill of exceptions contains, which we deem unnecessary to repeat, because the question of the jurisdiction of the Kansas City Court of Appeals in that cause must rest on what the record proper shows. Upon that showing the relator moves this court to quash the record of the Kansas City Court of Appeals, and contra the respondents move to quash the writ of certiorari.

1. The abstract of the record filed by the appellant in the Court of Appeals conforms, as far as it goes, to the requirements of the statute (section 813, Rev. St. 1899; Ann. St. 1906, p. 783) as interpreted by this court in many cases, among which the more recent are: Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Stark v. Zenhder, 204 Mo. 442, 102 S. W. 922; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542; Gilchrist v. Bryant, 213 Mo. 442, 111 S. W. 1128; Thompson v. Ruddick, 213 Mo. 561, 111 S. W. 1131. It properly distinguishes between those matters which ought to appear in the court record proper and those which ought to appear in the bill of exceptions. It sets out those record facts, not by literal copy, which would be unnecessary, but in abbreviated narrative form, which is sufficient and preferable. McDonald v. Hoover, 142 Mo. 484, 44 S. W. 334; Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825; Martin v. Castle, 182 Mo. 216, 81 S. W. 426. In those cases it was also held that the statements in the abstract were to be taken as conclusively true, unless brought into question by a counter abstract. Thus the record proper shows the judgment rendered, shows that a motion for a new trial was filed and overruled, and shows that after that, and during the same term, the defendant against...