The State ex rel. Field v. Ellison

• Decision Date: 15 February 1919
• Citation: 209 S.W. 107,277 Mo. 46
• Parties: THE STATE ex rel. ANNIE C. FIELD v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

209 S.W. 107

277 Mo. 46

THE STATE ex rel. ANNIE C. FIELD v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

February 15, 1919

Writ made absolute.

Johnson & Lucas and R. H. Field for relatrix.

(1) The Supreme Court has a superintending control of the Court of Appeals, and has the final say as to the sufficiency of a printed abstract of record filed in a case in the Court of Appeals, when there is a controversy thereon; and this authority is properly exercised by a mandamus proceedings. State ex rel. v. Smith, 172 Mo. 446; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v Broaddus, 239 Mo. 368. (2) It is no longer necessary that printed abstracts of the record filed in appellate court should contain a copy, or even any recital, of the record entry in the circuit court of the filing of the bill of exceptions in a cause. It is now sufficient as to filing of a bill of exceptions in a cause in the circuit court, if the printed abstract of the record, filed in the appellate court only "state that the bill of exceptions was duly filed." This recital imports that the bill of exceptions was filed within the proper time and in the proper place and that the proper record entry thereof was made in the circuit court. Rule 26, K. C. Court of Appeals, adopted Jan. 6, 1913; Rule 31, Supreme Court, adopted Dec. 10, 1912; Reidy v Reidy, 171 Mo.App. 342; Burnett v. Prince, 272 Mo. 74. (3) The Court of Appeals was in error and entirely wrong in construing the recital of the filing of relatrix' bill of exceptions, set forth in relatrix' abstract of the record, as being a recital in the said bill of exceptions, because the said bill of exceptions contains no recital of its filing. This recital in relatrix' abstract of the record entirely precedes the bill of exceptions set forth therein. (4) Respondents are also wrong in the contention in their return, that the heading "Bill of Exceptions," preceding the above stated recital, in relatrix' said abstract of the record, severed that recital from the parts of the record proper set forth in said abstract. This heading, "Bill of Exceptions," was a double-header; it properly denoted the entire subject of the bill of exceptions and all that was said thereon in the paragraphs following it. This was no confusion of the record proper with the matters of exception in said printed abstract of the record. City of Caruthersville v. Huffman, 262 Mo. 367. Surely, it cannot be correctly held that it was not germane to this heading, "Bill of Exceptions," to recite thereunder the fact that the bill of exceptions was duly filed, because without being duly filed it could not be considered a bill of exceptions. (5) Furthermore, this heading, "Bill of Exceptions," was not required and was obviously used only as a pointed way of suggesting the place in the printed abstract where the whole subject of the bill of exceptions could be turned to and found, including both the filing thereof and also the bill of exceptions itself. This heading does not purport to be, and is not, any actual part of the record, and therefore is to be considered as mere surplusage in the printed abstract in question. It is uniform and familar law that a court paper or court record is not vitiated, weakened or strengthened, by merely superfluous matters therein. Iroquois v. Annan-Burg Milling Co., 179 Mo.App. 87; State ex rel. v. Knight, 46 Mo. 83; Dollman v. Munson, 90 Mo. 85; State ex rel. v. Tittman, 103 Mo. 554; Radcliffe v. Ry. Co., 90 Mo. 128.

Ball & Ryland for respondents.

(1) Mandamus will not lie in this case (a) because the object and purpose of the use of the writ here is to correct an alleged error in the matter of the law of procedure, claimed to have been committed by a court of competent and final jurisdiction in its disposition of the case involved; and (b) because if relatrix's theory of the correct rule of law on the matter in question is sound, she has another proper and sufficient remedy. 6 West's Dig., title, "Mandamus," secs. 4, 5, 21 and 23; Same title and secs., vols. 13, 15 and 17; State ex rel. v. Broaddus, 207 Mo. 107. (2) The abstract does not comply with Rule 26 of the Court of Appeals, or with identical Rule 31 of this court, as construed by that court and this. Harding v. Bedoll, 202 Mo. 629; State ex rel. v. Broaddus, 239 Mo. 364; Hutson v. Allen, 236 Mo. 646; City of St. Louis v. Young, 248 Mo. 347; State ex rel. v. Board of Health, 266 Mo. 265; Tracy v. Tracy, 201 S.W. 902; Squares v. Peters, 202 S.W. 530; Wilson v. Reed, 270 Mo. 400.

GRAVES, J. Faris, J., dissents because he thinks mandamus is not proper remedy. Bond, C. J., concurs in result.

OPINION

In Banc

Mandamus.

GRAVES J. --

This case, in its facts, turns upon a narrow margin. The original action was one to enforce a special tax bill, by the Parker-Washington Company against the relator herein, Annie Camp Field. The circuit court of Jackson County decided against Mrs. Field, and she appealed to the Kansas City Court of Appeals. In this case she filed an abstract of record, but the court, by a per curiam opinion, held that all of her complaints were lodged against matters of exceptions in the bill of exceptions, and that her abstract of record failed to show that she filed a bill of exceptions. The Court of Appeals thereupon ruled that, as there was no error upon the face of the record proper, the judgment would have to be affirmed and accordingly it was affirmed.

The present proceeding is one by mandamus to compel the Court of Appeals to hear relator's appeal upon its merits. The exact situation, as appears from the abstract of record before the Kansas City Court of Appeals, is as follows: First, we have the caption "Appellant's Abstract of the Entire Record in the Case." Under this caption is (1) a recitation of the facts of the filing of the petition in the circuit court, (2) an abstract of the petition, (3) a recitation of the facts of the filing of an answer by defendant, Annie C. Field, and a copy of such answer.

We then find the following headline: "Other Record Entries," and following this headline is another headline reading: "Bill of Exceptions." As the crux of the case is at this point, we deem it best to quote in full here from and including the two headlines above mentioned, and for some space following the latter headline, so that the exact connection may be seen. It follows thus:

"Other Record Entries.

"November 2, 1916, jury waived in this cause.

"May 7, 1917, 49th day of the regular March Term of said Circuit Court, record of Division 4 of said court recites trial of the cause before the court without a jury, the court's finding and special judgment for the plaintiff, Parker-Washington Company, in the sum of $ 59.16 as the amount then due on the alleged tax-bill and, adjudged the plaintiff, Parker-Washington Company, have special judgment for said sum, with ten per cent interest from date, and have execution therefor and for all costs, against appellant's said lot of land described in the petition.

"May 9, 1917, record of Division No. 4 of said Circuit Court recites that, on that day, Annie Camp Field filed in this cause her motion for a new trial herein.

"May 10, 1917, record of said division of said court recites the following: (1) That, on that day, said court overruled said motion for a new trial and that, afterwards on the same day, defendant, Annie Camp Field, filed her affidavit for appeal in this cause from the said judgment and decision of Division No. 4 of said circuit court to the Kansas City Court of Appeals; and said appeal was duly taken by said Annie Camp Field, and was duly allowed by said circuit court.

"Bill of Exceptions.

"June 1, 1917, the appellant, Annie Camp Field, duly filed her bill of exceptions in this cause, which said bill of exceptions recites and sets forth the following:

"That on the 2nd day of November, 1916, the 37th day of the regular September Term of Division No. 4 of the Circuit Court of Jackson County, Missouri, at Kansas City, the trial herein was begun and the following proceedings were had in this cause before Hon. W. O. Thomas in said division of said court, to-wit: R. E. Ball appeared as attorney for plaintiff and R. H. Field appeared as attorney for defendant, Annie Camp Field. The plaintiff read in evidence the special tax bill for $ 28.40, alleged in the petition; which, with the ten per cent per annum interest allowed on said special tax bill amounted on the date of the judgment to the sum of $ 56.16, the amount of the court's finding and judgment (Bill of Exception, page 2)."

From thence forward is an abstract of matters in the bill of exceptions. On the last page of the abstract of the Record in the Court of Appeals appears this:

"Wherefore, the defendant Field prays the court to settle and allow this her bill of exceptions to all and singular the acts, rulings and orders of the court in the premises, and that the same may be signed, filed, and made a part of the record herein. (Bill of Ex. 58)

"Now, therefore, the court, being fully advised in the premises doth find the foregoing to be a correct bill of exceptions taken and saved on behalf of the defendant Field herein, and doth sign the same, and doth order that the same may be filed and made a part of the record in this cause.

"Given under the hand of the judge of said court, before whom the proceedings were had, on this 1st day of June, 1917.

Wm. O. Thomas,

"Judge of the Circuit Court of Jackson County,

Missouri, at Kansas City, Division No. 4.

"(Bill of Ex. 59-60)"

The cover to said bill of exceptions has indorsed thereon the following:

(1) The number and title of the case as herein-before stated;

(2) "Filed June 1st, 1917, James B....