Thorp v. Chicago, B. & Q. Ry. Co.

• Decision Date: 29 May 1911
• Citation: Thorp v. Chicago, B. & Q. Ry. Co., 138 S.W. 100, 157 Mo. App. 495 (Mo. App. 1911)
• Parties: THORP v. CHICAGO, B. & Q. RY. CO. et al.
• Court: Missouri Court of Appeals

138 S.W. 100

157 Mo. A. 495

THORP v. CHICAGO, B. & Q. RY. CO. et al.

Kansas City Court of Appeals. Missouri.

May 29, 1911.

Rehearing Denied June 12, 1911.

1. APPEAL AND ERROR (§ 511) — RECORD — ABSTRACT — BILL OF EXCEPTIONS — SIGNING BY JUDGE.

Where appellant's abstract in the recital of the record, failed to show that a bill of exceptions was signed by the judge, that it was allowed by the court and ordered filed, the bill of exceptions could not be regarded as a part of the record, though it purported to be so signed and filed, since the bill cannot prove itself.

2. APPEAL AND ERROR (§ 934) — PRESUMPTIONS — EVIDENCE TO SUPPORT ACTION.

Where, in an action against a railroad company for so constructing a fill as to obstruct the flow of water of a creek, the petition did not contain an express averment that an opening in the embankment was not sufficiently large to permit the passage of all the water that the creek would carry within its banks, but the language used was sufficiently comprehensive to embrace such an allegation in the absence of a bill of exceptions, a verdict having been rendered for plaintiff, it would be presumed that the evidence supported a cause of action founded on defendants' negligent obstruction of the waters of the stream, and that plaintiff was permitted to recover on no other cause.

Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.

Action by James R. Thorp against the Chicago, Burlington & Quincy Railway Company and another. Judgment for plaintiff, and defendant Railroad Company appeals. Affirmed.

Warner, Dean, McLeod & Timmonds, for appellant. Joseph S. Rust, for respondent.

JOHNSON, J.

This is an action for damages caused by an overflow of water on plaintiff's farm adjacent to the appealing defendant's railroad. The Wabash Railway Company and the Chicago, Burlington & Quincy Railway Company were made defendants. The trial resulted in a directed verdict and judgment for the Wabash Company and in a judgment for plaintiff against the remaining defendant. The petition was amended during the trial, and the allegation on which plaintiff was allowed to go to the jury was made for the first time in the amendment, and is as follows: "Plaintiff states that east of the land he was cultivating and under the tracks of defendants' roads and the said embankment there was and at all times has been an opening through or under which ran a small spring branch called Prather creek, which was a natural water course, and that defendants negligently failed to leave, make, and maintain an opening at that place under their tracks sufficient to carry off the water which would and did accumulate there, during rainy seasons, and which their said embankment caused to accumulate there, and which from the natural lay of the land would and did naturally accumulate there during ordinary wet rainy weather, such as existed at the time of and just prior to the damage to plaintiff's crops as herein set forth; that by reason thereof and because of the negligence of defendants aforesaid the waters did at the time in 1904, as aforesaid, accumulate north and above the said opening, tracks, and embankment of defendants and back up on the land of plaintiff, as aforesaid."

Defendant did not demur to the petition, but filed answer. Two main propositions are urged in the briefs of counsel for defendant, viz., that the petition does not state a cause of action, and that the evidence fails entirely to support the averments we have quoted. Plaintiff seeks to eliminate the last proposition by attacking the sufficiency of defendant's abstract of the record proper to preserve and present the bill of exceptions for our consideration. The specific objections to the abstract are that it fails to show in the recital of the record entries (1) that the bill was signed by the judge; (2) that it was allowed by the court; and (3) that it was ordered filed. The recital thus attacked is as follows: "Thereafter, on the 11th day of October, 1910, being the 2d day of the October term, 1910, of said circuit court, and within the time allowed by said circuit court, the defendant, Chicago, Burlington & Quincy Railway Company, duly filed its bill of exceptions in said cause which, omitting the caption, is as follows."

We shall consider the objections to the abstract in the order of their statement. The recital in question is silent on the subject of the signing of the bill. Very recently the Supreme Court has reiterated the well-known rule that a bill of exceptions not signed by the judge is no bill at all, and cannot become a part of the record. State v. Riley, 228 Mo. 431, 128 S. W. 731. And it has been held over and over again that the abstract of the record must show affirmatively in the recitals of record entries that the bill was signed. That fact cannot be shown conclusively by the recitals of the bill itself since that instrument is not allowed to prove its own authenticity. This court held in Novinger v. Railway, 131 Mo. App., loc. cit. 338, 111 S. W. 516: "It is also essential that it (the abstract of the record proper) should show that the bill was signed by the judge" — citing Harris v. Wilson, 199 Mo. 412, 97 S. W. 591, where the Supreme Court said: "This shows the filing of a motion for new trial within four days after return of verdict, and at the same term of court. It shows that a purported bill of exceptions was allowed, signed, sealed and filed, but by whom signed and sealed and by whose order filed, or whether filed by order of record does not appear. Counsel conclude that it was filed in due time, but this is a mere conclusion of counsel and not an abstract of record. * * * It follows that there is no such abstract of record in this cause as will authorize us to go beyond the record proper."

In Harding v. Bedoll, 202 Mo., loc. cit. 634, 100 S. W. 638, the Supreme Court again declared the indispensability of a recital in the abstract of the record proper of reference to the record showing that the bill was signed, ordered filed, and filed. "As to whether there was a bill of exceptions signed, by whom signed, filed, or by whom ordered filed, we are left wholly in the dark. Upon this point the abstract is wholly insufficient." In subsequent cases the Supreme Court has not followed and applied certain rules pronounced in Harding v. Bedoll, but has not intimated that it entertained any view contrary to the rule in the foregoing quotation from that case, and in the very recent case of Wallace v. Libby, 132 S. W. 665, the decision in Harding v. Bedoll is cited with approval, and the rule is restated that failure of the abstract of the record proper "to show that the bill of exceptions was ever filed is fatal to a hearing in the Supreme Court, and such omission is not supplied by a recital of the filing in the bill of exceptions itself." The necessity for showing the signing of the bill is as great as that for showing the filing, and we regard the case just cited as an authority supporting the position of plaintiff. Also we regard as authoritative the decision in Pennowfsky v. Coerver, 205 Mo., loc. cit. 136, 103 S. W. 542, where it is said: "Other necessary record entries are absent, in that there is no record entry abstracted showing a motion for a new trial filed at a given date and a given term; in that there is no record entry abstracted showing such motion overruled; in that the abstract shows the bill of exceptions was filed in vacation, and there is no record entry showing that time was given to file said bill of exceptions. These things each and all do appear in the bill of exceptions; but a bill of exceptions is settled and filed, in natural sequence, after the foregoing things are spread of record in the record proper. Its office is to make what was not of record, a part of the record. It is evidence of nothing except what belongs in it, even after it is vitalized by being allowed, signed, and filed. A bill of exceptions is what its very name imports, a receptacle for exceptions, and is not a fit legal vessel to hold matter belonging to the record proper; hence, a recital in such bill cannot be held evidence of such matter, secundum artem. Bick v. Williams, 181 Mo. 526 [80 S. W. 885]; State v. Ryan, 120 Mo. 88 [22 S. W. 486, 25 S. W. 351]; Webster County v. Cunningham, 101 Mo. 642 [14 S. W. 625]; Western Storage & Warehouse Co. v. Glasner, 150 Mo. 426 [52 S. W. 237], and cases cited; Butler County v. Graddy, 152 Mo. 441 [54 S. W. 219]; Hogan v. Hinchey, 195 Mo., loc. cit. 533 ; Harding v. Bedoll, 202 Mo. 625 [100 S. W. 638]; Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 407 [72 S....