State v. Woods

• Decision Date: 31 March 1911
• Parties: STATE ex rel. WAYNE COUNTY v. WOODS et al.
• Court: Missouri Supreme Court

136 S.W. 337

234 Mo. 16

STATE ex rel. WAYNE COUNTY v. WOODS et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1911.

1. APPEAL AND ERROR (§ 581)—RECORD—ABSTRACT—SUFFICIENCY.

An overruled motion to dismiss an action is not reviewable where the abstract of record does not show filing of such motion, though purported bill of exceptions embodies the motion and a recital of the action thereon.

2. APPEAL AND ERROR (§ 586) — RECORD— SUFFICIENCY.

Filing of exceptions to a referee's report is sufficiently shown where the abstract of record sets out a judgment reciting hearing and action upon exceptions to the report "as heretofore filed."

3. APPEAL AND ERROR (§ 937)—REVIEW—EXCEPTIONS—PRESUMPTIONS.

Since trial courts are presumed to have proceeded rightfully, exceptions will be presumed to have been filed in time where the record proper shows filing and consideration by the court.

4. REFERENCE (§ 100)—REPORT—EXCEPTIONS.

Exceptions to a referee's report must specify the rulings challenged.

5. APPEAL AND ERROR (§ 266)—PRESERVATION OF GROUND FOR REVIEW — EXCEPTIONS.

Exception must be reserved to a ruling on written exceptions to a referee's report.

6. APPEAL AND ERROR (§ 301) — REVIEW— MOTION FOR NEW TRIAL—NECESSITY.

Exceptions to a referee's report are not reviewable where the motion for new trial fails to assign the overruling of such exceptions as error.

7. APPEAL AND ERROR (§ 549)—PRESERVATION OF OBJECTIONS—EXCEPTIONS TO REFEREE'S REPORT.

To preserve objection to an overruling of exceptions to a referee's report, motion for new trial on such overruling and the ruling on the motion and exceptions to the last-mentioned ruling must be properly preserved by a bill of exceptions.

Appeal from Circuit Court, Wayne County; Jos. G. Williams, Judge.

Action by State of Missouri, on the relation of Wayne County, against William Woods and others. Judgment for plaintiff, and defendants appeal. Affirmed.

V. V. Ing, O. L. Munger, J. F. Green, and Thomason & Clark, for appellants. J. F. Meador, J. H. Raney, and Jas. Orchard, for respondent.

GRAVES, P. J.

For four years William Woods was clerk of the county court of Wayne county. By law he was entitled to retain from the fees of his office $1,250 per year for his salary and $900 per year for deputy hire. The present suit is an action upon his bond for fees and moneys collected and not reported in his several settlements with the county court. The delinquency of each year of his term is the subject of a separate court in the petition. The cause was sent to a referee, who in his report made a finding of facts and stated his conclusions of law, and in which he recommended that judgment for the full penalty of the bond go, but, to be satisfied upon the payment of $3,108.32, the aggregate amount found to be due from said Woods to Wayne county. Judgment was entered in accordance with the report and recommendation of the referee. From this judgment this appeal was taken, and the cause is here for determination. The form of the petition is not attacked, and it need not be further mentioned.

By answer the defendant Woods (1) denies generally the matters pleaded, except that he was clerk of the county court and executed the bond sued upon; and (2) full settlement and acquittance by the county court. In this latter portion of the answer is contained an averment that the county court had directed said Woods to do things which he was not required as clerk to do, and that these matters entered into the settlement made. The reply by specific allegations put in issue all matters set up in the answer. Other defendants answered by way of a general denial. Defendants also claim to have filed a motion to dismiss and abate the action, because the county court had made no order of record directing the prosecuting attorney to institute the proceeding. This sufficiently outlines the case. Other matters of record and evidence can best be stated and discussed along with the points made.

1. In natural order, the motion to dismiss should be first considered. Plaintiff urges that the record fails to show the filing of this motion, and for that reason it is not here for consideration. This contention is correct. The abstract of the record proper nowhere shows the filing of such a motion. Under the heading, "Bill of Exceptions," we find such a motion, as well as a recital of the action of the court thereon, and defendant's exceptions to such action of the court. This is insufficient. When such motion was filed, if it was filed, the clerk of the court had to make a record entry of such filing, and this entry should have been abstracted as a part of the record proper. We have universally held that the record proper should show the filing of motions for new trial, motions in arrest of judgment, motions to make more specific, and all similar motions; and if such record, as abstracted, did not show these record facts, such motions were not here for consideration. The motion in question falls within the general class, and the contention of the plaintiff is sustained. Hill v. Butler County, 195 Mo. 511, 94 S. W. 518; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Crossland v. Admire, 149 Mo. 650, 51 S. W. 463; Lawson v. Mills, 150 Mo. 428, 51 S. W. 678; St. Charles ex rel. v. Deemar, 174 Mo. 122, 73 S. W. 469.

2. Plaintiff further contends that the abstract of record fails to show that defendants filed any exceptions to the report of the referee. In one sense this is true, and in another it is not true. Going to the abstract of the record proper, we find that the entry made by the clerk at the time the exceptions were filed has not been abstracted. But, going further into the abstract of the record proper, we find the entry of the judgment in the case, and in that judgment we find this recital: "Now on this 14th day of February, 1908, this cause coming on to be heard upon the defendant's exceptions to the referee's report as heretofore filed, and the court having seen and heard the same and being fully advised in the premises all and singular doth overrule the same." This recital from the record proper shows that exceptions had been filed. It further shows that the exceptions were considered by the court, and after consideration were overruled. It is true that this record entry does not show that the exceptions were filed within the four-day limit prescribed by statute (R. S. 1909, § 2012), but, as we have held that the circuit court may grant further time in which to file such exceptions, and further...