State v. Miller

Decision Date29 April 1922
Docket NumberNo. 23036.,23036.
PartiesSTATE ex rel. BROCKMAN MFG. CO. v. MILLER, Circuit Judge.
CourtMissouri Supreme Court

John T. Sluggett, Jr., and Jones, Rocker, Sullivan & Angert, all of St. Louis, for relator.

Foristel & Eagleton, of St. Louis, for respondent.

Murat Boyle, of Kansas City, amicus curiæ.

WALKER, J.

This is an original action in mandamus, brought to compel a circuit judge of the city of St. Louis to sign a bill of exceptions. The action below was one at law. The relator herein was the defendant. There was a trial by a jury. Instructions were given and refused. There was a verdict and judgment for the plaintiff, from which the defendant sought to appeal.

Under the procedure in the circuit court of the city of St. Louis, the judges, 16 in number, are transferred at intervals from one division to another. When the defendant, in the process of perfecting its appeal, presented its bill of exceptions for the judge's signature, another than the one who had conducted the trial was presiding in that division. Objection was made by the plaintiff to the signing of the bill, on the ground that the exceptions to the giving and refusing of instructions had not been made by the defendant at the time, but when the bill was prepared. A hearing was given on this question, resulting in a refusal by the court to sign the bill, on the ground insisted upon by the plaintiff. The relator thereupon filed a petition for the writ herein prayed, in which the foregoing facts were formally pleaded. In addition to much argumentative matter, it was alleged that up to July 1, 1921, the date when the judge who had refused to sign the bill was transferred to the division in which the trial was had, a rule was in force and observed in said division by which—

"all exceptions to adverse rulings from the court were considered saved as a matter of course, the exception to be noted by the reporter transcribing the testimony and to be inserted in the bill of exceptions."

Respondent's return admits the existence of the rule of practice above set forth, as obtaining in said division at the time of said trial in regard to the saving of exceptions, as follows:

"Respondent further says that whether, at the time of the trial of the said cause before the said Judge Hogan, as aforesaid, there was a rule of practice in force in said division No. 9 of said court that all exceptions to adverse rulings of the court were considered saved as a matter of course, the exceptions to be noted by the official reporter transcribing the testimony and to be by him inserted in the bill of exceptions, the respondent does not know. Although respondent is informed and believes, and therefore admits on such information and belief, that such rule of practice was so in force, yet in this behalf your respondent says that, if any such rule of practice was in fact so in force in said division No. 9 at said time, such rule of practice cannot and did not operate in law, as respondent believes and respectfully submits, to abrogate the express provisions and requirement of the statute of this state (R. S. Mo. 1919, § 1459) that all exceptions to the opinions and rulings of the court during the progress of any trial shall be saved at the time, as said statute has been construed and applied by this honorable court, and, more recently, by the honorable the St. Louis Court of Appeals, in the decision of the case of Tyon v. Wabash Railway Co., decided June 21, 1921, and reported in 232 S. W. at page 786."

Relator's petition, setting up the facts concerning the giving and refusing of instructions in this case, is as follows:

"Your petitioner further represents and shows to the court that at the close of all the evidence offered at the trial of the cause of Martha Kerte against your petitioner, each of the parties handed and submitted to the Honorable Granville Hogan, as the judge presiding at the trial of said cause, the instructions offered by each party; that the said judge took said instructions, and did not at any time notify or inform your petitioner, or announce in open court, which of said instructions he intended to give and read to the jury, and which of said instructions he intended to refuse; that the said judge of said division of said court, as aforesaid, did not at any time notify or inform your petitioner that he intended to refuse, and had refused, to give certain instructions requested by your petitioner, and simply, and without the knowledge of your petitioner, marked said instructions `Refused,' and that your petitioner did not know, and could not know, that the court had refused to give said instructions so requested by your Petitioner until the judge thereof failed to read said instructions to the jury; so that it was impossible for your petitioner to have excepted at the time to the action of the court in refusing to give and read said instructions so offered by your petitioner to the jury, nor did the court advise or inform your petitioner, or announce in open court, what instructions he intended to give and read to the jury on behalf of the plaintiff, or that he intended to give an instruction of his own motion, so that your petitioner did not know and could not know what instructions the court intended to give on behalf of the plaintiff, or of the court's own motion, until after said instructions had actually been read to the jury."

These facts are admitted by the respondent.

To this return the relator filed a motion for a judgment on the pleadings, alleging that on the averments of the alternative writ, admitted to be true by the return of the respondent, the relator was entitled as of right to the peremptory writ prayed for herein. In this manner is the issue presented.

I. It is beyond question that courts have an inherent power to prescribe rules of practice to regulate their proceedings in the administration of justice. The evident and recognized limitations upon this power are: First, that such rules must be in harmony with the law; and, second, they must be reasonable, in that their effect will not be to deprive any party of his legal rights. We have most recently held in State ex rel. Pedigo v. Robertson, 181 S. W. 987, following a number of earlier decisions, that courts of record have authority to make rules governing the practice before them when in harmony with the...

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