State v. Gibson

• Decision Date: 16 March 1905
• Citation: 187 Mo. 536,86 S.W. 177
• Parties: STATE ex rel. PRIDDY et al. v. GIBSON.
• Court: Missouri Supreme Court

86 S.W. 177

187 Mo. 536.

STATE ex rel. PRIDDY et al. v. GIBSON.

Supreme Court of Missouri.

March 16, 1905.

BILL OF EXCEPTIONS — SIGNING — TIME — EXTENSION — EXPIRATION — SUBSEQUENT ACTS — INVALIDITY — MANDAMUS — JUDGES — EXPIRATION OF TERM — LACHES.

1. Where a trial judge failed to sign and certify bills of exceptions within the time fixed, as extended, he was thereafter without power to do so either of his own motion or on request of parties.

2. A judge has no power to extend the time for singing a bill of exceptions after time previously granted has expired.

3. The fact that the time granted by a trial judge for the preparation, signing, and filing of bills of exceptions expired before they were signed did not prevent the Supreme Court from issuing a peremptory writ of mandamus directing the subsequent signing thereof.

4. Under Rev. St. 1899, § 731, providing that in any case where the judge who heard the cause shall go out of office before signing the bill of exceptions the bill, if agreed to be true by the parties or their attorneys, "or shown to the judge to be correct," shall be singed by the succeeding or acting judge of the court where the case was heard, mandamus will not be granted to compel signature of a bill of exceptions in a case tried by a judge whose time has expired.

5. Relators instituted several actions to recover land, which were tried together before respondent. On his refusal to sign bills of exceptions, relators selected one of the cases in which mandamus proceedings were instituted to compel the signing of the bill therein, and neglected to proceed in the others for more than a year on the mere hope that, should the writ be awarded, the defendants in the other cases would stipulate to be bound by such decision. Held, that relators were barred by laches from obtaining mandamus to compel the signature of bills in such other cases.

In Banc. Mandamus by the state, on the relation of one Priddy and others, against James Gibson, to compel the settlement of bills of exceptions. Denied.

See 83 S. W. 472.

S. P. Forsee, W. C. Forsee, H. H. Mc-Cluer, and M. M. Bogie, for relators. C. O. Tichenor, O. H. Dean, Lathrop, Morrow, Fox & Moore, and S. W. Sawyer, for respondent.

LAMM, J.

Original mandamus, instituted here on December 29, 1904; alternative writ, with rule to show cause on January 3, 1905, issued on same day, and served on respondent December 31, 1904. On respondent's making return, relators filed their motion for judgment on the pleadings, and thereby an issue at law is joined for determination. Such issue demands a summary of the material allegations pro and con, in the making of which, as appears in due course, our labors are lightened because of certain issues settled in a former case in this court between the same relators on one side and the same respondent on the other. It appears from the recitations of the alternative writ borrowed from the showing made in relators' petition, that Priddy et al., the present relators, commenced their certain nine actions in the circuit court of Jackson county, some being assigned to Division 1 and some to other divisions of that court, and all returnable to its January term, 1903. These suits were against divers and sundry separate defendants, including one Mackenzie; and each petition contained two counts, one in plain ejectment and another having for its purpose the determination of the interests and the quieting of the title of relators in the specified land, under section 650, Rev. St. 1899. Such proceedings were had in all these cases as resulted in their gathering and remaining in the division of said court over which respondent presided, and this over the protest of relators and exceptions saved. Relators then filed their duly verified application for a change of venue in each of said cases, setting forth, inter alia, that respondent and the other judges of said court (naming them) were (1) prejudiced against relators, and each of them; (2) that the opposite party had an undue influence over the minds of said judges and the mind of each of them; (3) that the opposite party had undue influence over the inhabitants of said county of Jackson; and (4) that the inhabitants of said county were prejudiced against each of relators. With such filing relators paid to the clerk of said court the statutory sum of $10 in each cause. On June 30, 1903, respondent heard said applications for a change of venue, with the evidence offered, and denied all and every of them, to which ruling relators objected and saved exceptions. Defendants in said several causes had theretofore answered in common form, and thereby pleaded certain legal defenses, together with such particular estoppels in pais and other equitable matters as entitled them to affirmative relief, which they duly prayed, and which made the causes cognizable in a court of equity before a chancellor. In this condition of things respondent advised relators in open court that he purposed trying all said causes at one and the same time, as if they had been consolidated, by applying all the evidence offered on each side to all the cases, and by applying it to each in so far as it was peculiar to each case; whereat relators objected to such ruling, and saved an exception. Relators then made applications for a continuance, alleging lack of preparedness. This grace was denied, and they again saved exceptions; whereupon relators were forced to trial on the merits in all said cases (treated as consolidated), and they presently offered evidence tending to show that respondent, prior to his election to the bench, was a member of a distinguished law firm in Kansas City (Warner, Dean, Gibson & McLeod), which firm was then the attorneys of defendant Mackenzie, and as such attorneys did give an opinion through one of its members (McLeod) to the effect that the title to the real estate in question was perfect, and that relators had no interest therein, and from which relators say, arguendo, it resulted that respondent, by virtue of said partnership relation, had, in effect, guarantied the title good as against relators' claim, and thereby brought himself within the doctrine of the maxim, "In propria causa nemo judex." On the offer of this testimony relators formulated, filed, and read a verified "protest" reciting the facts last above, and requesting a discontinuance of the trial on the theory that respondent had been of counsel in the matter on trial, and was practically sitting in judgment on his own case. This protest was overruled, and relators saved an exception. The trial progressed to its close, the court finding all the issues for defendants, overruling motions for new trial and in arrest, to which relators saved exceptions, and granting record leave to relators to file bills of exception on the third Monday of the ensuing October term, 1903.

We have purposely, thus far, compressed the exhaustive recitations of the alternative writ (spread over 19 pages of print) into small compass, and shall continue so to do. The remaining recitals of the writ are, in effect, that relators, within the time limited by leave, presented nine bills of exception, common in form except as to names, each alleged to be a true bill, barring all evidence on the merits; the object being to present to this court for review (1) the ruling of respondent on the applications for a change of venue, (2) his action in compelling the joint trial of the nine cases, (3) his ruling on the applications for a continuance, and (4) his ruling on said verified protest and his refusal to discontinue the trial on the disclosures in evidence as aforesaid; and which said bills contained all said written applications and all evidence pertinent to each, together with the rulings of respondent thereon and relators' exceptions thereto, as well as the motions for a new trial and in arrest and rulings thereon. Respondent refused to settle and allow the bills unless the evidence on the merits was incorporated therein, and so notified relators. Thereas relators requested him to examine them, and indorse thereon his objections, and return them to relators, to the end that they might, if possible, procure them to be signed by bystanders. From time to time, by orders made of record, the time for filing the bills was extended in order to enable respondent to state his objections, the last extension being until December 5, 1903. None of these extensions had been requested by relators, and up to that date neither respondent nor defendants' attorneys had disclosed to relators the scope or character of any objections (excepting the omission of the evidence on the merits) they or either of them had to the bills, though often requested so to do. On the 4th of December, 1903, relators' counsel appeared in open court, and filed a motion for a further extension of time, alleging for grounds that the time was about to expire, and they had not been informed of the character of objections entertained, if any, and their right to bills would be lost through no fault of theirs unless an extension was granted. On December 5, 1903, this motion was overruled, and a series of rather anomalous incidents occurred, the real tenor of which is somewhat nebulous and elusive as gathered from the alternative writ, but, stated cautiously, the pith of it all results apparently in this: Relators' counsel appeared betimes in court (9:30 a. m.), saw their bills (quoting the language of the writ) "lying on your bench in said court within arm's length of you, with the written objections you had prepared to said bills attached thereto." Respondent declined on request (1) to allow relators to examine the bills or objections before said motion for an extension of time was passed on or to "touch the bills"; (2) refused to disclose what his objections were; (3) refused to deliver relators' bills back to them, though he informed them his objections were indorsed thereon; and (4) refused...