Stid v. Missouri Pac. Ry. Co.

• Citation: 211 Mo. 411,109 S.W. 663
• Parties: STID v. MISSOURI PAC. RY. CO.
• Decision Date: 02 April 1908
• Court: Missouri Supreme Court

109 S.W. 663

211 Mo. 411

STID v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

April 2, 1908.

1. JUDGMENT — ON TRIAL OF ISSUES — MOTION IN ARREST — NATURE OF.

The office of a motion in arrest of judgment is to call the court's attention to error patent of record. The error must be intrinsic to and not dehors the record, and must be matter of substance as distinguished from matter of form.

2. SAME.

Strictly speaking, a motion in arrest of judgment is not a motion for a rehearing, and if granted, it does not necessarily result in a new trial, and if an amendment be allowed, the cause, under the express provisions of Rev. St. 1899, § 804 (Ann. St. 1906, p. 769), proceeds according to the practice of the court.

3. APPEAL — FINAL JUDGMENT — QUESTIONS REVIEWABLE.

Defendant filed a motion for a new trial, and also one in arrest of judgment. The record entries showed that the motion for new trial was overruled, that thereafter defendant's appeal was allowed, and that at a subsequent date the motion in arrest was overruled as of that date. The bill of exceptions stated, however, that the latter motion was overruled when the motion for new trial was passed on, and that exceptions were saved to overruling both. Held that, though while on the allowance of the appeal the court lost jurisdiction, it retained jurisdiction of the record, and could amend the same so as to make it state the truth, yet the entry of the order overruling the motion in arrest not purporting to be a nunc pro tunc entry to amend the record was a nullity, and the judgment with the motion pending was a final one from which an appeal would lie, though questions raised by the motion could not be considered.

In Banc. Appeal from Circuit Court, Jackson County.

Action by Ora W. Stid against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Motion to dismiss appeal overruled.

M. L. Clardy and Elezah Robinson, for appellant. Silverman & Boxley, for respondent.

LAMM, J.

Defendant appealed from a judgment of $16,000, rendered June 19, 1906, at the June term of the Jackson circuit court. Within four days thereafter defendant filed a motion for a new trial and a motion in arrest of judgment. Neither of them was disposed of at the trial term. At the ensuing term, to wit, the September term, 1906, on the 6th day of October, the motion for a new trial was overruled, and an entry to that effect made. On the heels of that entry at the same term, to wit, on October 22d, defendant filed its affidavit and bond for appeal. Its bond was approved, its appeal allowed, and time given to file its bill of exceptions. In due time the time for filing the bill was extended. Following that entry, and at the December term, to wit, on December 20, 1906, an entry spread of record shows the motion in arrest was overruled as of that date. Eleven days later, at the same term, in apt time, the bill of exceptions was allowed, signed, filed, and made a part of the record. That bill contains the following statement: "On Saturday, October 6, 1906, the court overruled defendant's motion for a new trial and motion in arrest of judgment, to which action of the court in overruling said motions and each of them the defendant at the time duly excepted." Attending to the dates, it appears the appeal was taken at the September term, and the motion in arrest was not overruled until the December term. If, however, force be given to that part of the record preserved in the bill of exceptions, the motion in arrest was overruled at the same time as the motion for a new trial, and exceptions were saved to overruling both.

On the theory there is no final judgment from which an appeal lies until the motion in arrest be overruled, plaintiff files a motion here to dismiss the appeal as premature. Defendant presents suggestions against that motion duly served on respondent's counsel. In those suggestions, verified by affidavit, it appears it had been the custom and practice in the circuit court of Jackson county to hear and determine the motion in arrest at the same time the motion for a new trial is heard and determined, unless particular reason exists for separating the hearing and determination of such motions, which particular reason did not exist in this case; that defendant's counsel had always supposed the motion in arrest had been passed upon at the same time the motion for a new trial was overruled, according to custom, and he knew no better until served with a notice of the filing of the motion to dismiss the appeal; that the belated entry of December 20, 1906, overruling the motion in arrest, was made without notice to him and without his knowledge. Counsel does not know whether it was made under the direction of the court or by the clerk of his own motion, and has been unable to ascertain how or why it happened to be made. It further appears that the transcript was lodged in this court on November 22, 1906, and that when counsel was served with notice of the motion to dismiss the appeal the time had passed in which a writ of error could be sued out, so that, if the appeal be dismissed, defendant, if not without all remedy, at least is placed in a situation of extreme peril in its right to review.

The point made by plaintiff's learned counsel is novel, and, bespeaking careful consideration, it has been deemed best to hand down our views in writing. Under our practice the precise, technical office of a motion in arrest has become somewhat obscure in certain phases. For example, cases might be cited where matter quite properly covered by a motion in arrest has been considered on appeal, when no such motion was in the case, but appellant had rested on a motion for a new trial alone. Again, there are cases in which matter proper in arrest of judgment has been considered and determined where there was no bill of exceptions and only the record proper was here; for example, where the petition states no cause of action. The office of a motion in arrest is said to be to call the court's attention to error patent of record. The error must be intrinsic to the record, and not dehors the record, and must be matter of substance as distinguished from matter of form. One or the other of the foregoing propositions may be found sustained in one or the other of the following authorities: Funkhouser v. Mallen, 62 Mo., loc. cit. 558; Jaccard v. Anderson, 32 Mo. 188; Welch v. Bryan, 28 Mo. 30; Pickering v. Telegraph Co., 47 Mo., loc. cit. 460; State v. Larew, 191 Mo., loc. cit. 196, 89 S. W. 1031; Childs v. Railway, 117 Mo. 427, 23 S. W. 373; State, to Use of St. Louis County, v. Bonner, 5 Mo. App., loc. cit. 16; White v. Caldwell, 17 Mo. App. 691; 2 Ency. Pl. & Pr. pp. 794-796. Speaking with precision, a motion in arrest is not a motion for a rehearing. If granted, it does not necessarily result in a new trial. If an amendment be allowed, the cause by statutory command proceeds "according to the practice of the court." Rev. St. 1899, § 804 (Ann. St. 1906, p. 769). When we consider the limited and humble office of a motion in arrest in the light of the authorities cited, it can be seen to be no essential element in an appeal. It is a not infrequent practice to appeal...