State v. Trimble
| Citation | 237 S.W. 1021,291 Mo. 532 |
| Decision Date | 09 February 1922 |
| Docket Number | No. 22970.,22970. |
| Court | United States State Supreme Court of Missouri |
| Parties | STATE ex rel. KANSAS CITY LIGHT & POWER CO. v. TRIMBLE et al. |
John H. Lucas, William C. Lucas, and Ludwick Graves, all of Kansas City, for relator.
E. H. Gamble, S. L. Trusty, W. W. McCanles, and F. M. Kennard, all of Kansas City, for respondents.
Mandamus. The purpose of this proceeding is to compel the Kansas City Court of Appeals to set aside its affirmance of the judgment in the case of Samuel Pyle v. Kansas City Light & Power Company, 239 S. W. ___, the relator in this case. The Pyle Case had resulted in a judgment against relator, and an appeal had been taken to the Court of Appeals. When the case came on for hearing the Court of Appeals assigned two reasons for affirming the judgment: First, that there was no showing that the bill of exceptions was signed, and that it appeared that the record proper disclosed no error; and (2) that appellant's statement of the case was insufficient under the statute (section 1511, ac, S. 1919) and rule 16 of the court (169 S. W. xiv). Trimble, J., dissented. Relator contends the court was in error with respect to both these matters to such an extent that mandamus can be employed in the manner in which it seeks to employ it.
I. The abstract of the record proper before the Court of Appeals in the Pyle Case contained this:
"The bill of exceptions was duly filed by the appellant in the office of the clerk of the court, and allowed, signed, sealed and ordered made a part of the record in the cause by the court."
This entry expressly shows the signing of the bill. The decisions in criminal cases which were cited by the court and which are now cited by respondents' counsel are not in point. In such cases the statute (section 4102, R. S. 1919; requires the clerk of the circuit court to certify to the appellate court a full transcript of all proceedings "including the bill of exceptions," and thus there is placed before the court the best evidence on the question whether the bill was signed. If the transcript of the bill, before the court in due procedure, disproves a record entry of the signing of the bill, the former governs. State v. Watts, 248 Mo. loc. cit. 497, 154 S. W. 721; State v. Griffin, 249 Mo. loc. cit. 626, 155 S. W. 432; State v. Bockstruck (Mo. Sup.) 192 S. W. 404; State v. Brown, 164 Mo. App. loc. cit. 727, 147 S. W. 1134. In Garth v. Caldwell, 72 Mo. loc. cit: 626, 627, it appeared, as a fact, that no bill of exceptions had ever been signed during the time when it legally could have been done. Roberts v. Jones, 148 Mo. 368, 49 S. W. 985, followed that case, and Reno v. Fitz Jarrell, 163 Mo. 411, 63 S. W. 808, followed Roberts v. Jones on that point. Another ground of decision seems principally to have influenced this last-mentioned decision. In Cooper v. Maloney, 162 Mo. loc. cit. 686, 687, 63 S. W. 372, it seems to have appeared, as a fact, that no bill had ever been signed. The cases there cited on this point were cases which dealt with situations in which there was actually no bill of exceptions, and that fact appeared from the record. The dissenting opinion of Trimble, J., in Williams v. Kansas City Terminal Railway Co. (Mo. App.) 223 S. W. loc. cit. 134 et seq., when applied to a record like that in this case, reaches the correct conclusion. It may be added that the abstract in question showed at the close of the matter printed under the head of "Bill of Exceptions" the usual recital, which included the statement that the court in due time signed the bill. With the greatest respect for our brethren of the Court of Appeals, we reach the conclusion that the first reason given for affirming the judgment was unsound, in that the signing of the bill of exceptions sufficiently appeared from the abstract. It follows that matters of exception were open for consideration. In the circumstances mandamus lies to secure their consideration (State ex rel. v. Ellison, 277 Mo. loc. cit. 55, 209 S. W. 107), unless the second reason given by the court for its action is sound.
II. The second reason given by the Court of Appeals concerns the sufficiency of the statement. Interesting questions concerning the record, as printed here, and the power of this court to compel a Court of Appeals to make up its mind that a statement in a case before it is sufficient when tested by the standard fixed by the statute and rule of court, and concerning the power of this court to require a court of appeals to hold a statement insufficient in other circumstances might arise if another question had not intervened. Section 1511, R. S. 1919, does not prescribe any penalty for a failure of an appellant to file a sufficient statement. The court relied upon the statute and its rule 16. As precedents for its action in affirming the judgment because of the insufficiency of the statement, the court cited certain cases. In Wilkerson v. Knight & Ladies of Security (Mo. App.) 218 S. W. 976, there was a failure to comply with rule 15 of the court, as well as a failure to file an adequate statement under rule 16. In that case the court cited Disse v. Frank, 52 Mo. 551, in which counsel merely stipulated that the Supreme Court should dispose of the case on the record. No brief was filed. In Lawson v. Mills, 150 Mo. 428, 51 S. W. 678, though reference is made to the statement, the appeal was apparently dismissed for other reasons which came within the then rule authorizing dismissal. Neither of the cases cited in that case was disposed of on the statement alone. In Mills v. McDaniels, 59 Mo. App. loc. cit. 334, two reasons were given for dismissing the appeal —one was the insufficiency of the statement. The same thing is true of Brown v. Murray, 53 Mo. App. 184. In the case of Riordan v. Blenke, 24 Mo. App. 357, the St. Louis...
To continue reading
Request your trial