State v. Jarrott

• Decision Date: 22 June 1904
• Citation: 81 S.W. 876,183 Mo. 204
• Parties: STATE ex rel. GUINAN v. JARROTT, Judge.
• Court: Missouri Supreme Court

81 S.W. 876

183 Mo. 204

STATE ex rel. GUINAN v. JARROTT, Judge.

Supreme Court of Missouri.

June 22, 1904.

MANDAMUS — COMPELLING SIGNING OF BILL OF EXCEPTIONS — EQUITY CASE — REQUISITE OF BILL.

1. Mandamus may be resorted to when the circuit court improperly refuses to sign a bill of exceptions.

2. Where, in an equity case, the facts have been contested, the trial court will not be required, by mandamus, to sign a bill of exceptions which omits the evidence, though the court found the facts and stated conclusions of law thereon.

In Banc. Mandamus by the state, on the relation of Peter Guinan, to compel William L. Jarrott, as judge of the Seventeenth Judicial District, to sign a bill of exceptions in a suit by relator against M. S. C. Donnell and others. Writ denied.

Wm. C. Forsee and Samuel P. Forsee, for relator. E. P. Garnett. for respondent.

GANTT, J.

This is an original proceeding in this court to obtain a peremptory writ of mandamus to Judge William L. Jarrott, the judge of the Seventeenth Judicial District of this state, directing and commanding him to sign a bill of exceptions tendered him by the relator, the plaintiff and appellant in the cause of Peter Guinan v. M. S. C. Donnell and Catherine E. and James L. Donnell, wherein a judgment was rendered by the circuit court of Johnson county, whereof the respondent was, and still is, judge. The alternative writ recites: That in 1896 M. S. C. Donnell was the owner of certain lands in Jackson county, Mo., and on that date conveyed the same, by two deeds by him executed and delivered, to his son James L. Donnell. That in February, 1892, said M. S. C. Donnell made his promissory note for $5,000 to Anna B. Wagner for borrowed money, due five years thereafter. That, upon default in the payment of said note, Anna B. Wagner sued said Donnell on said note, and on November 9, 1899, obtained in the circuit court of Clay county a general judgment against said M. S. C. Donnell for $2,357.75, the balance due on said note. That in March, 1900, said Wagner assigned said judgment to Peter Guinan, the relator herein, who in the same year levied upon and sold as the property of M. S. C. Donnell the above-mentioned real estate which he had conveyed to his son, and, at the sheriff's sale, relator, Peter Guinan, purchased said lands at the price of $1,085, and obtained a sheriff's deed therefor. That he at once commenced a suit in equity against said M. S. C. Donnell and others interested in said lands to set aside said deeds from M. S. C. Donnell to his son on the ground that they were fraudulent, and made to hinder and delay the creditors of said M. S. C. Donnell. That a change of venue was awarded from Jackson county to Johnson county, and said cause was tried in the Johnson circuit court before Judge Jarrott at the February term, 1903. That at the commencement of the trial the relator requested Judge Jarrott to state his conclusions of fact separately from his conclusions of law, and on April 25, 1903, Judge Jarrott, at the termination of the trial, filed written conclusions of facts found by him, and found, as a conclusion of law, that the said Donnells were entitled, upon their cross-bill, to a judgment setting aside relator's sheriff's deed upon the payment by said Donnells to relator of the $1,085 by him paid for said land, and interest thereon from the date of his purchase. That on the same day relator excepted to each and every one of the said findings of fact and conclusions of law, and on the same day filed his motions for new trial and in arrest of judgment, and on the same day the said defendants in said suit filed their motions for a new trial and in arrest of judgment. That said motions were heard, and by Judge Jarrott taken under advisement until June 27, 1903, at the June term, 1903, of said circuit court, when, upon said date, the court overruled each of relator's motions, to which relator duly excepted at the time. That on the same day the judge sustained the motion of the Donnells for a new trial and to modify its judgment, to which relator excepted. That, by its order sustaining the motion for new trial of the said Donnells, the court modified, amended, and altered its judgment by striking out that part thereof which required said Donnells to pay relator, Guinan, $1,085, and interest from the date of his purchase of said lands. That to such modification relator duly excepted at the time. That at said June term relator filed his application and affidavit for an appeal to this court, and said appeal was granted. That at the same time leave was given relator until January, 1904, to file a bill of exceptions. That on December 22, 1903, this time was extended until March, 1904. That on September 25, 1903, relator filed in the office of the clerk of this court a certified copy of the judgment and order allowing an appeal, and paid the docket fee. That afterwards, and within the time allowed, relator prepared and tendered to Judge Jarrott, as judge of said Johnson county circuit court, a bill of exceptions which contained the following matters, to wit: "The conclusions or findings of facts specially made and filed by him as such judge, and his conclusions of law thereon, upon which the original judgment was rendered, with relator's exceptions thereto at the time, taken as aforesaid. The motion for new trial and the motion in arrest of judgment filed by relator on the day on which said special findings and conclusions were filed. The motion for new trial and to modify judgment, and the motion in arrest, filed by said Donnells on the same day. The subsequent order of the court overruling relator's two said motions, sustaining defendants' said motion for new trial, and to modify, and amending, modifying, or altering, said original judgment, together with relator's exceptions to the overruling of each of his said motions, to the sustaining of defendants' said motion, and to the attempted modification, amendment, or alteration of said first judgment." That Judge Jarrott advised counsel for relator that the defendants objected to said bill of exceptions because it contained none of the evidence or testimony detailed on the trial, and for that reason he must decline to sign and approve the same. That relator did not include any of the testimony taken on the trial, for the reason that he is entitled, if he so elects, to stand and rely in this court upon the facts specially found by Judge Jarrott, and, conceding said facts to be true, for the purposes of his appeal, to challenge the correctness and justice of the judgment of Judge Jarrott upon the facts so found. That to preserve all the evidence would cost relator a large sum of money, and relator only seeks to challenge the correctness of said judgment, and the action of the court on said motions, and other actions and rulings of the court on the pleadings. That in his motion for a new trial he asked a new trial "(1) because the court erred in overruling plaintiff's motion to strike out the joint answer of Catherine E. Donnell, M. S. C. Donnell, and James L. Donnell, and for judgment in favor of plaintiff against said defendants upon the pleadings; * * * (5) because the court erred in its conclusions of law upon the facts found; (6) because, upon the facts found, the court should have entered judgment in favor of plaintiff upon the pleadings, and against defendants upon their cross-bill. That, in and by his motion in arrest of judgment so filed in said court, relator prayed arrest of said judgment: (1) That, because of the pleadings in the cause, judgment should have been rendered for plaintiff, and against defendants, and each of them, upon the alleged cross-bill filed by M. S. C. Donnell, Catherine E. Donnell, and James L. Donnell. (2) Because said alleged cross-bill does not state facts sufficient to constitute a cause of action or ground of relief as against plaintiff. (3) Because the relief granted said defendants under said alleged cross-bill is unsupported by the averments thereof, and improper, erroneous, and equitable thereunder. (4) Because, upon the pleadings and evidence and the findings of fact, the judgment should have been for plaintiff."

The alternative writ issued, and commanded Judge Jarrott to allow and sign the bill, if he found the recitals therein to be true, or show cause why he should not do so. In due time, Judge Jarrott made his return, which is as follows, omitting caption: "Now at this day comes William L. Jarrott, judge of the Seventeenth Judicial District of the state of Missouri, the above-named defendant, and, for a return to the writ of mandamus heretofore issued in the above-entitled cause says that plaintiff ought not to have his writ of peremptory mandamus, for the reason that: First. The paper presented to this defendant for his approval and signature as a bill of exceptions was not and is not, in any sense of the word, a true bill of exceptions, as appears upon the face of plaintiff's petition herein, and the exhibits filed in connection therewith. Second. The paper presented by plaintiff, and designated as a bill of exceptions, did not contain, and does not purport to contain, any part of the evidence, offered at the trial of the said cause of Guinan v. Donnell. Third. The said cause of Guinan v. Donnell was a suit in equity, and the judgment of the court therein and its finding of facts therein could not be intelligently reviewed by this court without a consideration of all the evidence offered therein. The rule of this court requires that a bill of exceptions in equity cases should contain the whole evidence to be embodied in the bill of exceptions before it is allowed and signed by the trial judge. Fourth. The paper presented as a bill of exceptions simply contained matters which were already of record. The special finding of facts...