The State ex rel. Chester, Perryville & Ste. Genevieve Railway Co. v. Turner

• Decision Date: 13 February 1917
• Citation: 191 S.W. 987,270 Mo. 49
• Parties: THE STATE ex rel. CHESTER, PERRYVILLE & STE. GENEVIEVE RAILWAY COMPANY v. BERT TURNER et al., Appellants
• Court: Missouri Supreme Court

191 S.W. 987

270 Mo. 49

THE STATE ex rel. CHESTER, PERRYVILLE & STE. GENEVIEVE RAILWAY COMPANY v. BERT TURNER et al., Appellants

Supreme Court of Missouri

February 13, 1917

Appeal from Mississippi Circuit Court -- Hon. Frank Kelly, Judge.

Reversed.

J. L Fort and T. R. R. Ely for appellants.

(1) The sureties guaranteed that the clerk would perform the duties of his office "according to law," but they did not guarantee that he would perform them "according to the rules and customs of courts of last resort." A law is an act, enactment, ordinance, or statute, prescribed by the legislative power, as opposed to rules of civil conduct deduced from the customs of the people, or judicial precedents. 25 Cyc. 164; Brinckerhoff v. Bostwick, 99 N.Y. 185; Lycoming v. Wright, 60 Vt. 515; State v. Tingey, 24 Utah 225; Phelps v Panama, 1 Wash. 518; Swift v. Tyson, 16 Pt. 1. The decisions of courts are not the law; they are only evidence of the law. Yates v. Lansing, 9 Johns. 395; 25 Cyc. 164; Falconer v. Simmons, 51 W.Va. 172; Baltimore v. Baugh, 149 U.S. 368; United States v. Harris, 113 F. 27; Phipps v. Harding, 70 F 468; Hall v. Davis, 100 Ind. 422. Where an officer's duties are prescribed by statute, usage will not excuse their discharge in a different manner. So proof of a custom is not permissible to enlarge the powers of officers whose authority is defined by statute. 12 Cyc. 1056; Crocker v. Schureman, 7 Mo.App. 358; Walters v. Senf, 115 Mo. 524; Knox County v. Goggin, 105 Mo. 182. The rules of practice in the courts of last resort in this State may require the entry of the filing of the bill of exceptions in the "vacation record" of the court, but such rules do not constitute any part of the law of the State. State ex rel. v. Broaddus, 207 Mo. 127. (2) It has been said that the word "filing" is generally used to describe the endorsement on a paper of the day when it is left at a public office; but the filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon, and does not consist of the marking put on it by the clerk, but in placing it as a permanent record in the office, or case, where it belongs. Indeed the endorsement of the fact of filing is only evidence that such filing has been made. Lent v. Co., 130 N.Y. 504; Jones v. Wells, 3 Tex.App. 94; Grubbs v. Cones, 57 Mo. 83; State v. Hockaday, 98 Mo. 590; Vettison v. Budd, 21 Ark. 578; Jacksonville v. Walton, 42 Fla. 54; Oats v. State, 153 Ind. 436; Graham v. Summers, 25 Minn. 81; State v. Heth, 60 Kan. 560; In re Dewar, 10 Mont. 426; Bishop v. Cook, 13 Barb. 326; King v. Penn, 43 Ohio St. 57; Starkwether v. Bell, 12 S.D. 146; Franklin v. State, 24 Fla. 55; Newman v. Clayburn, 40 S.C. 549.

Giboney Houck, James F. Green and Davis & Hardesty for respondent.

(1) The entry of a circuit clerk showing the filing of a bill of exceptions in vacation has the dignity of a record and furnishes the only means of proof that the bill was filed. (a) The origin and early history of bills of exceptions clearly show that in the very nature of things a bill of exceptions could only be filed by permission of the court, and as the act of the court, evidenced by a record entry. Statute of Westminster II (13 Edw. l.c. 31); 3 Cyc. 23; Mo. Ter. Laws 1818, p. 259, sec. 46; 2 R. S. 1825, p. 631, sec. 39; Pomeroy v. Selles, 8 Mo. 727; 2 R. S. 1855, p. 1264, secs. 27 and 28; McCarty v. Cunningham, 75 Mo. 279; Spencer v. Railroad, 79 Mo. 500; State v. Duckworth, 68 Mo. 156; Brewer v. Dinwiddie, 25 Mo. 351; State ex rel. v. County Court, 51 Mo. 529; Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 589; La Follette v. Thompson, 83 Mo. 199. (b) Neither the Amendatory Act of 1885 nor that of 1889 modified the law on the point that the court, itself, was the sole source of authority for filing a bill in vacation, nor did these amendatory acts modify the practice of requiring a record entry in vacation, as well as in term time, for the purpose of filing a bill of exceptions. Law 1885, p. 214; R. S. 1879, secs. 3638 and 3639; Laws 1889, pp. 189-190; R. S. 1889, secs. 2168, 2170 and 2172; Craig v. Railroad, 248 Mo. 270; State v. Ryan, 120 Mo. 88; State v. Scott, 113 Mo. 559; State v. Britt, 117 Mo. 584; Ricketts v. Hart, 150 Mo. 64; Bradbury v. Kerns, 115 Mo.App. 99; State ex rel. v. Holland, 116 Mo.App. 345; Reynolds v. Schade, 131 Mo.App. 1; Williams v. Williams, 26 Mo.App. 408; La Follette v. Thompson, 83 Mo. 199; Ferguson v. Thatcher, 79 Mo. 511; Fulkerson v. Houts, 55 Mo. 302; Pope v. Thompson, 66 Mo. 661; Hayden v. Alkire Gro. Co., 88 Mo.App. 241; R. S. 1909, secs. 2029, 2031 and 2033; Johnson v. Hodges, 65 Mo. 589. (c) The doctrine of stare decisis precludes this court from changing its construction of the law covering the filing of bills of exceptions. Graham v. Conway, 91 Mo.App. 391; Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 589; State v. Ryan, 120 Mo. 88; Handlin v. Morgan County, 57 Mo. 116; Pennowfsky v. Coerver, 250 Mo. 37; Lawson v. Mills, 150 Mo. 429; Storage Co. v. Glasner, 150 Mo. 428; Butler County v. Graddy, 152 Mo. 443; Bick v. Williams, 181 Mo. 527; Ricketts v. Hart, 150 Mo. 68; Goodson & Wright v. Bevan, 89 Mo.App. 162; Wilson v. Railroad, 167 Mo. 323; La Follette v. Thompson, 83 Mo. 199; Allen v. Funk, 85 Mo.App. 460; Ferguson v. Thatcher, 79 Mo. 511; Jaco v. Railroad, 94 Mo.App. 567; Dinwiddie v. Jacobs, 82 Mo. 195; Hamilton-Brown Shoe Co. v. Williams, 91 Mo.App. 511; St. Charles ex rel. v. Deemar, 174 Mo. 122; Railroad v. Wyatt, 223 Mo. 347; Alt v. Dines, 227 Mo. 418; Hill v. Butler Co., 195 Mo. 511; Hodson v. McAnerney, 168 Mo.App. 385; Laws 1911, p. 139. (d) The Springfield Court of Appeals cites no cases which require this court to declare the law otherwise than as above indicated and contended for by respondent. Baker v. Henry, 63 Mo. 517; Fulkerson v. Houts, 55 Mo. 301; Johnson v. Hodges, 65 Mo. 589; State v. Ryan, 120 Mo. 88; Pullis v. Summerville, 218 Mo. 624; R. S. 1909, sec. 2001; Bensley v. Haberly, 20 Mo.App. 648; R. S. 1879, secs. 293, 294, 296, 298, 299; State v. Pieski, 248 Mo. 715; Dorrance v. Dorrance, 242 Mo. 625; Ferguson v. Thatcher, 79 Mo. 511; Carter v. Prior, 78 Mo. 222; Bower v. Daniel, 198 Mo. 289; St. Charles ex rel. v. Deemar, 174 Mo. 122; Pennowsfky v. Coerver, 205 Mo. 137. (2) The decision of the St. Louis Court of Appeals in the Callier case in question (158 Mo.App. 249) governs the case at bar. (a) In the first place, because it declares the law as it now is. In support of this proposition we cite all the authorities and all the arguments under point one. (b) In the second place, because the decision of the St. Louis Court of Appeals followed the then last controlling decision of the Supreme Court, and became the law of the case at bar for all purposes. Constitution, art. 6, Amendment of 1884; Shelby Co. Ry. v. Crow, 137 Mo. 461; Dorrance v. Dorrance, 242 Mo. 625; State v. Pieski, 248 Mo. 715; State v. Ellison, 181 S.W. 78, State ex rel. v. Ellison, 181 S.W. 998; State v. Ellison, 187 S.W. 23. (c) In the third place, because the clerk's failure to make the entry and then falsely certifying that he had made the entry, was the proximate cause of this very decision of the St. Louis Court of Appeals. R. S. 1909, secs. 2029, 2685; State ex rel. v. O'Gorman, 75 Mo. 379; Howard v. United States, 102 F. 77; Callier v. Railroad, 158 Mo.App. 249. And he can't invoke any rule that a mere depositing constitutes a filing as to him. State ex rel. v. Dickman, 124 Mo.App. 659; Collins v. Daniel, 66 Ga. 203; Norman v. Vanderburg, 157 Mo.App. 488; Weedon v. Railroad, 78 F. 591. Nor can his bondsmen invoke any defense not available to him. Boone Co. v. Jones, 54 Iowa 709; 29 Cyc. 1465.

BOND, J. Faris, J., concurs in the result; Blair and Williams, JJ., concur; Graves, C. J., dissents in a separate opinion; Walker and Woodson, JJ., dissent, and concur with Graves, C. J.

OPINION

In Banc.

BOND J.

I. The suit of Rean Callier against the Chester, Perryville & Ste Genevieve Railway Company for personal injuries was tried in the circuit court of Dunklin County, of which Bert Turner was clerk, and judgment rendered against the defendant railway company, which was affirmed by the St. Louis Court of Appeals upon a consideration only of the record proper, and thereupon paid by the said railroad, which now seeks redress on the clerk's official bond because of his failure properly to file the bill of exceptions, which negligence and failure of duty, it is alleged, deprived it of its right to have its appeal heard upon its bill of exceptions in the appellate court. The relator further claims that, had said bill of exceptions been properly filed, the said appellate court would have reversed the judgment against it; that the appellate court affirmed the judgment on the record proper, thereby compelling relator to pay the amount of the judgment and costs and suffer the further loss of expenses and attorneys' fees incurred in perfecting the appeal.

In the instant case the relator, in order to support its theory, presented to the trial court and presents to this court, the entire record of the Callier case, including the bill of exceptions presented to and rejected by the St. Louis Court of Appeals.

Relator also put in evidence the opinion of the St. Louis Court of Appeals in the Callier case, to show that the appellate court held that there was no record entry, minute, notation or memorandum in the records of the circuit court that the bill of exceptions had ever been filed and therefore refused to consider the bill of exceptions as a part of the files of the case, and affirmed the judgment on the record proper.

The contention of the relator in this regard is, that if through the fault of the clerk the bill of...