State v. Turner

Decision Date18 February 1914
Citation163 S.W. 951,177 Mo. App. 454
CourtMissouri Court of Appeals
PartiesSTATE ex rel. CHESTER, P. & S. G. RY. CO. v. TURNER et al.

Appeal from Circuit Court, Mississippi County; Frank Kelly, Judge.

Suit by the State, on the relation of the Chester, Perryville & Ste. Genevieve Railway Company, against Bert Turner and others. Judgment for plaintiff, and defendants appeal. Reversed and certified to Supreme Court.

J. L. Fort, of Dexter, and T. R. R. Ely, of Kennett, for appellants. Giboney Houck, of Cape Girardeau, James F. Green, of St. Louis, Lane & Alexander, of Cape Girardeau, Edward Robb, of Perryville, and Davis & Hardesty, of Cape Girardeau, for respondent.

STURGIS, J.

This is a suit on the official bond of the circuit clerk of Dunklin county; the defendant Turner being the clerk, and the other defendants the sureties on his bond. The alleged breach of his bond relates to this clerk's failure to perform the duties of his office in making a record or written notation showing the filing of the bill of exceptions in a personal injury case, entitled Rean A. Callier v. Chester, Perryville & Ste. Genevieve Railway Company, hereafter designated as the Callier Case, and which was tried, and judgment rendered against that defendant, relator here, in the court of which defendant Turner was clerk. The said railway company, as relator here, claims damages on the clerk's bond, because the failure of the clerk to properly file the bill of exceptions and make a record thereof deprived it of the right to have its appeal in the Callier Case heard in the appellate court. It claims, of course, that, had such case been heard on the whole record, inclusive of the bill of exceptions, the case would have been reversed outright, or at least reversed and remanded. As it was, the case was affirmed by the St. Louis Court of Appeals. Callier v. Chester, P. & St. G. R. Co., 158 Mo. App. 249, 138 S. W. 660. The damages are laid at the amount of the judgment and interest the relator was compelled to pay and the necessary costs, expenses, and attorney's fees incurred and paid in perfecting the appeal, rendered unavailing by having no bill of exceptions before the appellate court.

On the trial of the present case, the relator put in evidence, and presented to the trial court, and presents to this court, the entire record in the Callier Case, inclusive of the bill of exceptions presented to the St. Louis Court of Appeals, but not considered by it, for the purpose of showing that, had the defendant clerk "filed" the bill of exceptions, as was his duty to do, the Court of Appeals must have reversed the Callier damage case on the errors there shown. The opinion and judgment of the Court of Appeals in the Callier Case, supra, was put in evidence to show, as it does, that the Court of Appeals refused to consider the bill of exceptions, or any errors therein complained of, because there was no sufficient showing that such bill of exceptions was ever filed in the trial court. The relator proceeds here on the theory that, if it was the fault of the clerk that the bill of exceptions was not filed, and no such record of the filing made as would present that bill of exceptions to the appellate court for consideration, and if reversible error is shown by such bill, then the trial court and now this court must say that the appellate court, except for such fault of the clerk, would have reversed, as was its duty to do, the judgment which was affirmed, and thereby relator would have been relieved from the payment of such judgment. The defendants reply to this by saying that no reversible error is shown by the bill of exceptions, and its consideration by the Court of Appeals in the Callier Case would have made no difference as to affirming the judgment; that at most the case would have been reversed and remanded, and on another trial Callier would have recovered as large or a larger judgment, and therefore relator has lost nothing. The trial court took relator's view of the case, rendered judgment for the penalty of the bond, and awarded execution for $6,251.87.

The first, and as we view it the decisive, question presented here is whether the bill of exceptions in question was in fact filed in the manner provided by law; i. e., whether the clerk was guilty of any breach of official duty in reference to the filing of such bill. On this point the answer is: "Further answering herein, defendants aver that they have no knowledge or information sufficient to form belief as to whether the St. Louis Court of Appeals refused to pass upon or consider the bill of exceptions, as pleaded in plaintiff's petition, but aver the fact to be that, if it be true, as alleged in plaintiff's petition, that said court did refuse to pass upon or consider said bill of exceptions, the same was the result of the negligence and carelessness of plaintiff in failing to make any proof in said Court of Appeals, or elsewhere, of the fact that said bill of exceptions was deposited in the office of the defendant, Bert Turner, within the time allowed by law and the orders of the court in which said cause was tried, and by the orders of the judge of said court."

There is no dispute between the parties as to the facts relative to filing the bill of exceptions in the Callier Case. It is admitted by all parties that the bill was properly prepared and signed by the judge, and ordered, over his signature, to be filed as part of the record in that case; that such bill was, within the time granted by the court for that purpose, actually delivered by relator to the clerk at and in his office, with request and directions to file the same; and that the clerk then and there received the same and deposited and retained it in his office. He also informed relator, by signing and mailing to it a writing, set out in the Callier Case, supra, and by telephone, that such bill of exceptions was received and filed. The bill of exceptions was used in preparing the abstract of the record of the appeal in the Callier Case, and was yet in the clerk's office, its identity unquestioned, when offered in evidence in this case. The relator, on whom devolved the duty of preparing and having signed and filed the said bill of exceptions, and presenting and depositing it with the clerk at and in his office for filing, was anxious to show and did show that it performed its whole duty in this regard. It was shown and admitted, however, that the clerk did not make any record entry or written memorandum, commonly called a file mark, on the bill itself or in any vacation record showing the fact and date of the filing. The defendant clerk was equally anxious and willing to prove, and therefore admitted, such facts on his contention that the bill was both in law and in fact filed, and that his failure to make a record entry or notation in writing evidencing that fact was and is both harmless and no such breach of his official duty as to render him and his sureties liable on his bond. The argument in this behalf is that a record entry made by the clerk in vacation, or his file mark written or stamped on the paper filed, is only evidence of the filing, and by no means the only evidence of that fact, and, while it is customary for the clerk to make such written memorandum of the filing, as furnishing a ready, permanent, and convenient means of proving the fact of filing, yet, where, as here, the fact of filing can be and is readily established by other competent, available, and uncontradicted evidence, equally as potent as establishing the fact of filing, then no breach of official duty or, at most, a harmless one is shown.

It is evident that the same evidence introduced on the present trial was available when the question of whether or not the bill of exceptions had been filed arose in the St. Louis Court of Appeals in the Callier Case, and the question now presented to this court is whether such evidence was presented and sufficient to establish that fact in that court. The defendants disclaim any responsibility for failure, if any there was, in furnishing this available, competent, and efficient evidence to that court.

We think the law is well established in this state that a paper is filed in legal contemplation when it is presented and delivered to the proper officer, and received and deposited by him in the proper office to be kept on file; that the filing of a paper in vacation is necessarily a ministerial, and not a judicial, act; that the clerk's indorsement thereon or memorandum made, stating the fact and date of filing, or in what case filed, is only evidence of the filing, and not the sole or necessary element, the sine qua non, of such filing; that such filing may be established by other evidence; and that other courts than the one where the paper is alleged to have been filed have power to hear and determine the fact of filing when that question is...

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11 cases
  • Harris v. Missouri Pac. R. Co.
    • United States
    • Missouri Supreme Court
    • April 9, 1938
    ... ... protect its bridges and buildings from fire, and to keep its ... tracks and roadbed in a proper state of repair, is an ... instrumentality of interstate commerce. The work of keeping ... such instrumentality in a proper state of repair while thus ... Appellant ... calls our attention to Rule 11, quoted in part, supra, and to ... State ex rel. Chester, P. & Ste. G. Ry. Co. v. Turner, et ... al., 270 Mo. 49, 191 S.W. 987. What we may call the ... Turner case grew out of the facts disclosed in Callier v ... Chester, P. & Ste ... ...
  • State ex rel. Chester, Perryville & Ste. Genevieve Railway Company v. Turner
    • United States
    • Missouri Court of Appeals
    • March 5, 1914
  • Ferguson v. Long
    • United States
    • Missouri Supreme Court
    • June 30, 1937
    ... ... motion for a new trial); Dorrance v. Dorrance, 242 ... Mo. 625, 148 S.W. 94 (lodgment of amended petition with clerk ... of the court); State ex rel. Chester, Perryville and Ste ... Genevieve Ry. Co. v. Turner, 177 Mo.App. 454, 163 S.W ... 951, and same case, 270 Mo. 49, 191 S.W. 987 ... ...
  • State ex rel. McMillan v. Guinn
    • United States
    • Missouri Supreme Court
    • July 1, 1925
    ... ... dignity. [Cloud v. Pierce City, 86 Mo. 367; ... Jester v. Spurgeon, 27 Mo.App. 477.] ...           If a ... record is ambiguous or uncertain, it is permissible to ... explain the uncertainty or ambiguity by parol evidence. [22 ... C. J. sec. 1707, 1279-80; Railway v. Turner, 177 ... Mo.App. 454; Tucker v. McKay, 131 Mo.App. 728; ... Watts v. Levee Dist., 164 Mo.App. 263.] ...          The ... pleadings and the evidence in the case show that common ... school Districts Nos. 38, 39 and 40, Jasper County, Missouri, ... were, on October 22, 1920, under an ... ...
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