The State ex rel. McSweeney v. Cox

• Decision Date: 20 December 1926
• Docket Number: 27420
• Citation: 289 S.W. 869,315 Mo. 1332
• Parties: The State ex rel. Ralph McSweeney and Jesse A. Tolerton v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

289 S.W. 869

315 Mo. 1332

The State ex rel. Ralph McSweeney and Jesse A. Tolerton v. Argus Cox et al., Judges of Springfield Court of Appeals

No. 27420

Supreme Court of Missouri

December 20, 1926

Record quashed.

G. M Sebree and Frank B. Williams for relators.

The Court of Appeals erred in considering the contract sued on as a part of the record and making it the basis of its decision. Said contract never was incorporated in the bill of exceptions, nor called for by anything therein, nor was the trial court ever requested to make an order incorporating it in the bill. And the Court of Appeals in holding that there was a sufficient showing in the record to have justified the trial court in making a nunc pro tunc order incorporating the contract in the bill of exceptions and therefore it would consider that done which should have been done, contravened many decisions of this court. The law requires the trial court to approve and settle the bill of exceptions, and the appellate court cannot rule that the trial court erred in not making an order it never was requested or given an opportunity to make. The opinion should be quashed because in conflict with the decisions of this court in: Betzler & Clark v. James, 227 Mo. 387; State v. Forshee, 308 Mo. 661, and State v Baugh, 217 S.W. 280. See, also, Act of 1903, Laws 1903 page 105, now Sec. 1514, R. S. 1919.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

On the application of the relators a writ of certiorari was issued to review the opinion and judgment of the Springfield Court of Appeals in the case of City of Aurora v. Ralph McSweeney and Jesse A. Tolerton, then lately pending in said court.

Ralph McSweeney contracted with said city to build sections of a sewer in said city, and gave bond with Tolerton as surety for the faithful performance of the contract. The sewer was built and the contract price was paid. Afterwards the city brought suit on the bond for damages for failure to perform the work in accordance with the specifications of the contract. At the trial the court took the case from the jury, and the city appealed. The respondents contended in the Court of Appeals that the judgment should be affirmed because the contract referred to was not embodied in the bill of exceptions, nor was there a call in the bill for the clerk to copy it, as is provided in Section 1514, Revised Statutes 1919, and since the contract was neither inserted in the bill nor called for there was nothing before the court by which the liability on the bond could be fixed.

The opinion of the learned Court of Appeals states: "If a document offered in evidence is not copied in a bill of exceptions and there is no direction therein for the clerk to copy it and that is all that appears, it cannot be considered by an appellate court, even though the bill of exceptions does show it was offered and admitted in evidence at the trial," citing Betzler & Clark v. James, 227 Mo. 375, 126 S.W. 1007.

The opinion continues: "Considering the bill of exceptions as a part of the record and gleaning the facts therefrom and from the pleadings, there can be no possible doubt that the contract offered in evidence was the contract referred to in the petition and is the one under which the work of putting in the sewer was done by McSweeney. Nor can there be any possible doubt that the contract was offered and admitted in evidence. All this appears from the record and in our judgment is sufficient to justify an amendment of the bill of exceptions by an order nunc pro tunc so as to incorporate this contract therein and therefore sufficient to justify this court in treating it as a part of the bill of exceptions --" citing Darrier v. Darrier, 58 Mo. 223; Morton v. Lloyd Construction Co., 280 Mo. 360, 217 S.W. 831, and Solomon v. Moberly Light & Power Co., 262 S.W. 370.

It seems to me that this conclusion is a non sequitur and the very negation of the first conclusion announced, which we have italicized, and that it is in conflict with the decisions of this court construing Section 1514, Revised Statutes 1919. This section reads, in part: ". . . ; but it shall not be necessary, for the review of the action of any lower court on appeal or writ of error, that any pleading . . . or any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court, shall be copied or set forth in the bill of exceptions filed in the lower court: Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court."

The facts as recited in the learned opinion are that the contract was identified and read in evidence, but it was neither called for nor set out in the opinion. It does not appear from the bill of exceptions, nor from any record or memorandum of the court or clerk, that it was intended the contract should have been inserted therein or that the clerk should copy it in the transcript of the record. No motion to amend the bill of exceptions was filed in the trial court. On this state of facts Judge Railey, speaking of documents not set forth or called for in the bill of exceptions, said that such documents "constitute no part of the record proper and cannot be reviewed by us, because none of said documents are set out or called for in the bill of exceptions, nor are any exceptions saved in...