State v. Ellison

• Decision Date: 02 July 1917
• Docket Number: No. 20073.,20073.
• Citation: 196 S.W. 1103
• Parties: STATE ex rel. PEET et al. v. ELLISON et al.
• Court: Missouri Supreme Court

196 S.W. 1103

STATE ex rel. PEET et al. v. ELLISON et al.

No. 20073.

Supreme Court of Missouri, Division No. 1.

July 2, 1917.

Motion for Rehearing Overruled July 14, 1917.

Original certiorari proceedings by the State, on the relation of William Peet and others, against James Ellison and others to review a decision of the Kansas City Court of Appeals (190 S. W. 88) affirming a judgment of the trial court against relator. Preliminary writ quashed.

On January 23, 1914, Andrew Wank and Jacob Geiger filed in the circuit court of Buchanan county, Mo., their petition against Wm. Peet, C. C. Courtney, T. J. Coughlin, John E. Dolman, and Bartlett Trust Company, a corporation, as defendants. The trust company was merely a depository of the moneys involved, with no actual interest in the case. Plaintiffs claim to be creditors as well as stockholders of the dissolved corporation, British-American Portland Cement Company, and allege that defendants Peet, Courtney, and Coughlin had in their possession funds of said dissolved corporation, had improperly and unlawfully paid out moneys belonging to said dissolved corporation, and sought to impress the funds and have them applied in payment of the amounts owing said plaintiffs, to wit, $500 each, with interest thereon. They also asked for an injunction to prevent defendants from paying out or appropriating said moneys, for an accounting, and for the appointment of a receiver.

It was alleged that Dolman had been paid certain moneys as counsel fees by the other defendants, and an accounting of said money was demanded. Defendant Dolman filed a cross-bill setting up his employment as attorney for the defunct corporation, and for the other defendants in administering its affairs. He admitted the receipt of certain sums of money paid him as attorney's fees for said services, offered to make an accounting thereof, and asked for a reasonable allowance for his services to be paid out of the funds belonging to said defunct corporation in the hands of the other defendants.

Plaintiffs applied for a referee. The court of its own motion appointed E. M. Swartz, Esq., as referee. The latter heard the evidence and made his report as to the facts. The trial court modified the findings of the referee, and made specific findings of its own, etc. The referee found that plaintiffs were entitled to $500 each, and defendant Dolman $1,870.08 in addition to what he had already received, as creditors of said corporation, and that all other creditors had been paid. The trial court adopted this finding, and entered its judgment accordingly. The defendants Peet, Courtney, and Coughlin appealed to the Kansas City Court of Appeals, and on November 27, 1916, the latter affirmed the judgment of the trial court.

The opinion of the Kansas City Court of Appeals was written by Judge Ellison, concurred in by all the members of said court, and will be found reported at pages 88 and following of 190 Southwestern Reporter.

After said opinion was handed down, defendants Peet, Courtney, and Coughlin filed a motion for rehearing, which was denied; a motion to transfer the case to this court, which was overruled; a petition in this court for a writ of mandamus against the judges of said Court of Appeals, which was denied; and, finally, a petition for a preliminary writ of certiorari, which was granted.

The case is now pending in this court on the record returned by the respondents as judges of said Court of Appeals. The opinion and judgment of the Court of Appeals is assailed upon various grounds by relators, and such questions as we deem necessary and important will be considered in the opinion.

William G. Holt, of Kansas City, and L. C. Gabbert, of St. Joseph, for relators. Culver & Phillip, of St. Joseph, for respondent Dolman. W. B. Norris, of St. Joseph, for respondents Andrew Wank and Jacob Geiger.

RAILEY, C. (after stating the facts as above).

Numerous questions are raised and discussed in relator's briefs, which cannot be considered by this court in passing upon a writ of certiorari.

I. It is contended that the action of the Kansas City Court of Appeals in disposing of the cause upon the record proper before it, and in refusing to examine the evidence adduced at the trial in the circuit court, is in conflict with the rulings of this court in the following cases: McDonald & Co. v. Hoover, 142 Mo. 484, 44 S. W. 334; Martin v. Castle, 182 Mo. 216, 81 S. W. 426; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Mahaffey v. Cemetery Ass'n, 253 Mo. 135, 161 S. W. 701; Municipal Securities Corp. v. Kansas City, 265 Mo. 252, 177 S. W. 856; Wolf v. Harris, 267 Mo. 405, 184 S. W. 1139; Wimpey v. Ledford, 177 S. W. 302.

In the original case of Wank et al. v. Peet et al., 190 S. W. loc. cit. 89, Judge Ellison, speaking for the Court of Appeals upon this subject, said:

"Plaintiffs insist that no alleged error save what may appear in the record proper can be urged in this court, for the reason that no motion for new trial is preserved in the bill of exceptions. What appears to be a motion for new trial is set out in the record proper, but that is no place for its preservation. That is a proper and necessary place for it to appear that a motion for new trial was filed and overruled, but the motion itself should appear in the bill of exceptions with the exception taken to its being overruled. By the terms of the statute (section 2083, R. S. 1909) it is necessary to copy the motion in the bill before it is signed by the judge, unless it contains directions to the clerk to copy, in which case it will be sufficient if the motion `is copied into the record sent up to the appellate court.' In this case the motion for new trial is not copied into the bill of exceptions, nor does the bill contain directions to copy it. The only thing appearing in the bill is that a motion for new trial was filed and overruled and exception taken, and that `said motion for new trial is set forth in full on page 89 to 105 of this abstract; hence is here omitted.' Those pages are pages of the record proper, and there is found at that place a copy of what purports to be a bill of exceptions. It has been many times decided that that mode of preserving a motion for new trial will not be allowed."

The Court of Appeals in support of its ruling cited the following cases: State v. Revely, 145 Mo. 660, 662, 47 S. W. 787; Blanchard v. Dorman, 236 Mo. 416, 439, 139 S. W. 395; State ex rel. v. Board of Health, 266 Mo. 242, 262, 264, 180 S. W. 538; Pugsley v. Ozark Cooperage Co., 154 Mo. App. 387, 133 S. W. 859; State ex rel. Waggoner v. Leichtman, 146 Mo. App. 295, 130 S. W. 94.

The relators have filed in this court a copy of the abstract of record filed in the Kansas City Court of Appeals, and even if it were proper to examine same in passing upon the case, we would find upon page 637 that the Court of Appeals is fully corroborated in respect to what it contains.

We will consider: (1) Whether the conclusion reached by the Court of Appeals is in conflict with the above cases relied on by relators; (2) whether the cases relied on by the Court of Appeals are in conflict with those cited by relators; and (3) whether the rulings of the Court of Appeals is in accord with the last controlling decision or decisions of this court.

(a) McDonald v. Hoover, 142 Mo. 484, 44 S. W. 334, cited by relators, does not even discuss the question involved, much less decide

the same. In Martin v. Castle, 182 Mo. 216, 81 S. W. 426, the question now before us was neither considered nor determined. Our rulings in Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638, do not support the contention of relator, but are in line with the conclusion reached by the Court of Appeals. In Mahaffey v. Cemetery Ass'n, 253 Mo. 135, 161 S. W. 701, the question now before us was not in the case, and was not considered by this court. In Mun. Securities Corp. v. Kansas City, 265 Mo. loc. cit. 264, 177 S. W. 858, Judge Faris says:

"The bill of exceptions, as the record shows it, contains the motion for a new trial in full, as also exceptions to the action of the trial court in overruling it."

This case does not support relator's contention in any particular. In Wimpey v. Ledford, 177 S. W. 302, the question now under consideration was not even mentioned. In Wolf v. Harris, 267 Mo. 405, 184 S. W. 1139, the question before us was not in the case, nor even discussed. None of the cases cited by relators support their contention.

(b) All of the cases cited by the Court of Appeals in relation to above matter are directly in point and fully sustain the conclusion reached by said court.

(c) In the recent case of State ex inf. v. Morgan, 268 Mo. loc. cit. 270-271, 187 S. W. 55, in disposing of this subject, we said:

"Appellant in his abstract of record, where matters of exception are relied on, must show by the record proper that his motion for a new trial was filed within the time required by law. He complied with this requirement, as shown by the record. He is likewise required in his abstract of record to set out, as a part of the bill of exceptions, the motion for a new trial, or by appropriate language call for same therein.

"In the case at bar the alleged bill of exceptions does not contain any motion for a new trial, nor is there any call therein for said motion. Hence, under...