State v. Broaddus

• Decision Date: 16 December 1911
• Citation: 143 S.W. 455
• Parties: STATE ex rel. MODERN WOODMEN OF AMERICA v. BROADDUS et al., Judges.
• Court: Missouri Supreme Court

143 S.W. 455

STATE ex rel. MODERN WOODMEN OF AMERICA v. BROADDUS et al., Judges.

Supreme Court of Missouri.

December 16, 1911.

Rehearing Denied January 27, 1912.

1. APPEAL AND ERROR (§ 911)—REVIEW— PRESUMPTIONS—REGULAR TERM OF COURT.

Where it appears from the abstract of the record that a trial in the circuit court was begun on May 16th, and completed on the 17th, and that the defendant's motion for new trial was filed on the 18th, that the order granting the appeal was entered on June 1st, reciting that it was entered at the "same term," the Supreme Court will presume that the circuit court convened in regular session May 16th, as required by Rev. St. 1909, § 4017, and continued in such regular session until June 1st.

2. APPEAL AND ERROR (§ 654)—RECORD—ABSTRACTS—BILL OF EXCEPTIONS.

It is the duty of the appellate court to read into the printed abstract the certified copy of the judgment and the order granting the appeal, when the printed abstract is not clear and definite.

3. APPEAL AND ERROR (§ 590)—RECORD— SUPPLEMENTAL ABSTRACT.

The mere fact that an appellant requested permission to file a supplemental abstract of the record after his original abstract had been challenged does not justify the Court of Appeals in refusing to consider his bill of exceptions.

4. EVIDENCE (§ 41)—JUDICIAL NOTICE—TERM OF CIRCUIT COURT.

The Kansas City Court of Appeals has judicial knowledge that a regular term of the circuit court of Adair county convened on the 16th day of May, 1910.

5. APPEAL AND ERROR (§ 586)—RECORD—ABSTRACT—ENTRY OF GRANTING OF APPEAL.

An abstract of record entries reciting that an appeal was granted on June 1, 1910, means that the appeal was granted by an order of the court duly entered of record.

6. APPEAL AND ERROR (§ 511)—RECORD— BILL OF EXCEPTIONS.

Whether an appeal was properly granted and whether a bill of exceptions was filed in time to give the Kansas City Court of Appeals jurisdiction of alleged errors noted in the bill of exceptions, must be determined by the record proper, which derives no force or validity by any recital in the bill of exceptions, and, where the record proper shows that the bill of exceptions was filed within the time granted by the court, it is not necessary that the bill itself should refer to the order extending the time nor the order granting the appeal.

7. APPEAL AND ERROR (§ 713)—BILL OF EXCEPTIONS—RECORD PROPER.

Copying into a bill of exceptions the order granting time to file it is insufficient to show that the order was entered of record, and such order must appear in the record proper.

8. MANDAMUS (§ 48)—ACTS OF JUDGES—EXERCISING WHOLE JURISDICTION.

Under the Supreme Court's constitutional power to compel the judges of Courts of Appeal to exercise a part of their jurisdiction over an appeal, it has an implied power to require them to exercise their whole jurisdiction in such appeal, and to determine all issues presented therein.

9. MANDAMUS (§ 176)—ACTS OF JUDGES—ENFORCEMENT OF DECISION ON REVIEW—STAY OF JUDGMENT AND EXECUTION.

Where the Supreme Court on the relation of a party defendant in the circuit court whose appeal has been dismissed by the Court of Appeals issues mandamus to compel the Court of Appeals to consider relator's appeal, it may, as an incident to the writ, issue separate writs to the clerk and sheriff to hold the judgment in statu quo until the appeal is fully and finally disposed of.

Ferriss and Woodson, JJ., dissenting.

In Banc. Mandamus by the State of Missouri, on the relation of Modern Woodmen of America, against Eldridge J. Broaddus and others, as Judges of the Kansas City Court of Appeals, to compel them to set aside an order affirming a judgment (137 S. W. 12) and an order denying a rehearing and to redocket a case. Peremptory writ to issue with separate writs to the clerk of the circuit court and to the sheriff to stay judgment and execution.

Mandamus to compel respondents, as judges of the Kansas City Court of Appeals, to set aside an order made by them as such judges in March, 1911, affirming a judgment of the circuit court of Adair county, wherein one Nannie Floyd is respondent and the Modern Woodmen of America, a fraternal benefit society, is appellant. 137 S. W. 12. The writ also seeks to compel respondents to set aside an order made by them in said cause denying said appellant a rehearing, and to compel said respondents to redocket said cause, and to hear and determine same on the whole record presented by said appeal.

An examination of the writ and return of the respondents thereto discloses the following facts:

On May 17, 1910, Nannie Floyd, as plaintiff, obtained a judgment for $2,000 against the Modern Woodmen of America, as defendant, in the circuit court of Adair county. Said defendant appealed from said judgment to the Kansas City Court of Appeals, filing in said last-named court a certified copy of the judgment and order granting the appeal, and also what was intended to be a printed abstract of the entire record. In March, 1911, respondents heard said appeal, but, believing that appellant's printed abstract of the record proper was not sufficient to give them jurisdiction of the alleged errors noted in the bill of exceptions, affirmed the judgment. They also denied appellant a rehearing of said appeal.

From the opinion filed by respondents in said case of Floyd, Respondent, v. Modern Woodmen of America, hereinafter designated as appellant, we find that they refused to consider the alleged errors of the trial court noted in the bill of exceptions on the following grounds:

(1) The record proper in said case of Floyd v. Modern Woodmen of America does not show that appellant's motion for new trial was filed during the same term of the circuit court at which the verdict was rendered.

(2) Said appellant requested permission of respondents to file in said cause a supplemental or more complete abstract of the record.

(3) Said abstract does not show any of the pleadings upon which the cause was tried in the circuit court.

(4) It does not recite that the cause was tried at a term of the circuit court of Adair county.

(5) It shows that an appeal was granted, but does not recite any record entry to that effect.

(6) The bill of exceptions does not refer to the first order made by the trial court extending the time for filing the exceptions, and the bill of exceptions likewise does not refer to the order of the trial court granting the appeal.

(7) In their return to the alternative writ herein, respondents allege that the sufficiency of appellant's printed abstract of the record was a matter within the jurisdiction of the respondents as judges of the Kansas City Court of Appeals, and, if they committed error in adjudging said abstract insufficient, "it is error merely from which there is no appeal, and relator cannot by mandamus secure a rehearing in this or any other court."

On pages 24 and 25 of appellant's printed abstract, under the caption, "Record Entries," appears the following: "On the 16th day of May, 1910, the above-entitled cause came on for trial before the Honorable Nat M. Shelton, judge of the circuit court, and a jury. On the 17th day of May, 1910, the jury found a verdict for the plaintiff in the following form: `We, the jury, find for the plaintiff in the sum of $2,000. W. P. Linder, Foreman.' Which said verdict was duly entered of record on said 17th day of May, 1910, the judgment was duly entered thereon on said date in due form (certified copy of judgment on file in Court of Appeals). On May 18, 1910, the defendant filed its motion for a new trial herein, and thereafter, to wit, on the first day of June, 1910, the said motion for a new trial was taken up by the court, heard, and considered, and overruled, to which action of the court defendant then and there objected and excepted. Whereupon, on the first day of June, 1910, the defendant at the same term of court filed an application and affidavit for an appeal to the Kansas City Court of Appeals, which said appeal was granted on said date, and defendant was granted until on or before or during the October term, 1910, of the court, within which to file its bill of exceptions. Afterwards on the 14th day of June, 1910, within the time granted by the court, defendant filed its appeal bond, which said bond was approved. Afterwards, within the time granted by the court for...