State v. Tower Grove Turn Verein

• Decision Date: 06 November 1918
• Docket Number: No. 15069.,No. 10226.,15069.,10226.
• Citation: 206 S.W. 242
• Parties: STATE ex rel. CAMMANN v. TOWER GROVE TURN VEREIN et al.
• Court: Missouri Court of Appeals

206 S.W. 242

STATE ex rel. CAMMANN v. TOWER GROVE TURN VEREIN et al.

No. 15069.

No. 10226.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs October 7, 1918.

Opinion Filed November 6, 1918.

Rehearing Denied November 19, 1918.

Appeals from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Proceeding by the State, on the relation of Frederick A. Cammann, to compel the Tower Grove Turn Verein, a corporation, and its officers, to restore plaintiff to membership therein by a writ of mandamus. From a judgment denying the writ, plaintiff appeals; and, from an order allowing amendment to the bill of exceptions, the defendants appeal. Judgment allowing the amendment of bill of exceptions reversed, and judgment refusing a peremptory writ of mandamus affirmed.

Samuel I. Siff and M. Hartmann, both of St. Louis, for relator. Ferris & Rosskopf, of St. Louis, for respondents.

REYNOLDS, P. J.

In this case we have an appeal by relator from a judgment of the circuit court, denying a writ of mandamus to compel the respondents, the Tower Grove Turn Verein, a corporation, and its officers, to restore plaintiff to membership in the organization.

After that case was appealed to our court it was discovered that the bill of exceptions failed to note that a motion for new trial, filed by the relator, had been overruled, and that relator had excepted to the action of the court in overruling it. The circuit court, on motion of relator, allowed an amendment to the bill of exceptions, purporting to show these facts. From this respondent below appealed. Here the two appeals were heard together.

The main case was tried before the Honorable Glendy B. Arnold. He retiring from the bench, the bill of exceptions was tandered to his successor, the Honorable Vital W. Garesche, to whom a bill of exceptions was presented and upon it being approved by counsel for both parties, Judge Garesche signed it and it was duly filed of record in the cause. It was after this was done, and one or more terms of the circuit court had elapsed, and after the cause had been appealed to our court, that it was discovered that the bill of exceptions failed to embody a notation of the overruling of the motion for new trial and of exception being saved to that action. Counsel for relator thereupon moved, in the Division of the circuit court in which the cause had been determined, Judge Garesche then presiding therein, to amend the bill of exceptions so as to show these facts, namely; that the motion for a new trial had been overruled and that exception bad been saved to that action. His Honor, Judge Garesche, having heard testimony on the motion, sustained it and allowed the bill of exceptions to be amended as prayed. It was from this action of the circuit court that respondents below have duly appealed to our court, and we consider that

Appeal from the Order Amending the Bill of Exceptions.

It appears by the original bill of exceptions in the case that when the cause in the main case was called for trial and the relator was proceeding to the introduction of his testimony, the learned trial judge made a ruling to which that counsel excepted, and suggested that they might stipulate that all exceptions would be saved, to which the court answered: "You do not have to do that; that will be done anyway." The case was practically tried without any formal exceptions appearing thereafter.

The learned, trial court seems to have proceeded on the theory that this suggestion and understanding was sufficient to allow the amendment asked, and he accordingly allowed the bill of exceptions to be amended to show both that the motion for a new trial had been overruled and that exceptions had been saved to that action. There was sufficient in writing in the court files to authorize the amendment so as to show that the motion for a new trial had been duly over ruled. But beyond doubt there was no record entry or memorandum in writing showing exception to the action of the trial court in overruling that motion. The rule or understanding referred to was not sufficient to allow an amendment of the bill of exceptions so as to show that exception had been saved to overruling the motion for a new trial. We feel compelled to so hold, on the authority of the decision of our Supreme Court in Reed v. Colp, 213 Mo. 577, 112 S. W. 255.

In the Reed Case, supra (213 Mo. loc. cit. 585, 112 S. W. 257), it appeared that the amendment to the bill of exceptions there under consideration was made by the trial court in carrying out "a standing rule of court to the effect that it was not necessary to save exceptions to such ruling—that per contra, they were deemed to be saved (i. e., they saved themselves spontaneously)." After further observation as to what presumption might be indulged in, the court says, commencing on the same page:

"But the reference in the amending entry to the rule of court is of such sort as to entirely preclude such presumption; for the court bases the entry solely on the rule itself. Of such a rule, we had this to say in Green v. Terminal R. R. Ass'n of St. Louis, 211 Mo. loc. cit. 34 :

"`That ruling [to wit, a ruling that exceptions are presumed to be taken to all adverse rulings, though not noted at the time] is of doubtful value in the trial of a case, and ought to be of no force at all in an appellate court. Obviously, when a case reaches the point where a bill of exceptions is to be made, all exceptions intended to be relied on should be inserted in the bill. They cannot be hid under the cloak of an arbitrary presumption indulged below, and...