Welliams v. Kansas City Terminal Ry. Co.

• Decision Date: 06 January 1919
• Docket Number: No. 13100.,13100.
• Citation: 223 S.W. 132
• Parties: WELLIAMS v. KANSAS CITY TERMINAL RY. CO. et al.
• Court: Missouri Court of Appeals

223 S.W. 132

WELLIAMS v. KANSAS CITY TERMINAL RY. CO. et al.

No. 13100.

Kansas City Court of Appeals. Missouri.

January 6, 1919.

On Motion for Rehearing, March 3, 1920.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Viola D. Williams against the Kansas City Terminal Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed and certified to Supreme Court.

Lathrop, Morrow, Fox & Moore, of Kansas City, for appellants.

J. T. Mathis, of Kansas City, for respondent.

PER CURIAM.

Plaintiff recovered a verdict and judgment for personal injuries alleged to have been sustained by her in the new union depot at Kansas City, Mo., as the result of her foot slipping upon a step leading from the waiting room to her train.

The bill of exceptions does not purport to be authenticated by the signature of the circuit judge who tried the case nor by the signatures of three bystanders as required by section 2031, R. S. 1909. Under such circumstances, there is nothing before us for review except the record proper. State v. Bockstruck (Sup.) 192 S. W. 404; State v. Griffin, 249 Mo. 624, 155 S. W. 432; State v. Watts, 248 Mo. 494, 154 S. W. 721; State v. Collins, 196 Mo. 87, 93 S. W. 1117; Reno v. Fitz Jarrell, 163 Mo. 411, 63 S. W. 808; Roberts v. Jones, 148 Mo. 368, 49 S. W. 985; State v. Brown, 164 Mo. App. 726, 147 S. W. 1134.

Finding no error in the record proper, the judgment is affirmed.

On Motion for Rehearing.

BLAND, J.

The abstract of the record proper recites that the bill of exceptions "was duly filed," and the bill of exceptions recites, "The bill of exceptions, omitting formal parts, is as follows."

In view of these recitals, appellants claim it was not necessary to show a signature of the trial judge to the bill of exceptions. A bill of exceptions, standing alone, cannot prove its own validity, so prior to the adoption of our rule 26 ([169 S. W. xv] which is the same as rule 31, formerly 32, of the Supreme Court [186 S. W. x]), the record proper was required to show that the motion for a new trial was filed, that it was overruled, and that the bill of exceptions was filed. Stark v. Zehnder, 204 Mo. 442, loc. cit. 449, 102 S. W. 992. Rule 26 was adopted for the purpose of relieving appellants from abstracting record entries, showing the filing, etc., of the bill of exceptions, by providing it sufficient if his abstract of "the record" shall state that the bill of exceptions was duly filed. Sguares v. Peters et al., 202 S. W. 530. Rule 26, making it sufficient to recite "that the bill of exceptions was duly filed," refers to what it is sufficient to state in the "abstract of the record" proper and does not refer to the abstract of the bill of exceptions.

It is well established that matters required to be shown in the bill of exceptions cannot properly appear in the abstract of the record proper, nor can matters of the record proper properly appear in the abstract of the bill of exceptions. Keaton v. Weber, 233 Mo. 691, 136 S. W. 342. The signature of the trial judge is as much a part of the bill of exceptions as any other part of it and is necessary to identify the bill that the abstract of the record proper recites "was duly filed."

But defendant says that the provisions of rule 26, making it sufficient to recite that the bill of exceptions "was duly filed" and that "the burden is then on respondent to produce here the record showing the contrary to be true, if he makes the point," cures the appellant's failure to show the signature of the trial judge to the bill of exceptions, unless respondent makes the point that there was no signature and produces the record showing an absence of such signature.

As before stated, rule 26 in its entirety refers to the abstract of the record proper, and not to the abstract of the bill of exceptions. Let us see what would be the practical operation of this rule in a given case.

Appellant appeals his case here, reciting in his abstract of the record proper that the bill of exceptions "was duly filed." Respondent files here the record tending to show the contrary. Appellant does not concur in the record thus filed by respondent and proceeds under the provisions of section 2048, R. S. 1909, filing with the clerk his specific objections in writing, whereupon the clerk sends the order to the clerk of the trial court and the latter sends up a certified transcript "of that part of the record so in dispute." The part of the record in dispute is that part of the record proper showing whether "a" bill of exceptions has been "duly filed." This court then examines the transcript "of that part of the record" sent up by the clerk of the lower court and finds that the record shows that a motion for a new trial was filed, that it was overruled, and that "a" bill of exceptions was signed, ordered filed, and actually filed. Whether the bill of exceptions so filed is "the" bill of exceptions printed in appellant's abstract of the bill of exceptions is not yet established, as the court has before it, not the entire record, but only "that part of the record in dispute." Section 2048, R. S. 1909. So it is apparent that in adopting rule 26 the court did not attempt to change the rule in force "since the memory of man runneth not to the contrary," distinguishing the abstract of the bill of exceptions from the abstract of the record proper and providing that matters required to be shown in the abstract of the bill of exceptions may not be shown in the abstract of the record proper, and vice versa.

It is not sufficient in order to show that the bill of exceptions was signed by the trial judge to recite in the bill of exceptions that formal parts are omitted. Things necessary to be shown in the bill of exceptions, of course, may not be omitted.

The motion for a rehearing is overruled.

ELLISON, P. J. (concurring).

It is not disputable that, before we can notice a paper made up of matters of exception taken during the progress of a case and called a bill of exceptions, it must be signed by the trial judge. Roberts v. Jones, 148 Mo. 368, 49 S. W. 985; Reno v. Fitz Jarrell, 163 Mo. 411, 63 S. W. 808; State v. Collins, 196 Mo. 87, 93 S. W. 1117; State v. Watts, 248 Mo. 494, 154 S. W. 721; State v. Griffin, 249 Mo. 624, 155 S. W. 432.

The question arises as to how the signing may be shown, in the abstract. The abstract of the record proper may recite that it was signed and that would suffice—would be prima facie true—if the mere recital was all there was of the matter. But there must further appear an actual bill of exceptions in verification of such recital. For, if no paper at all purporting to be a bill appeared, the recital in the record that one had been signed by the judge would not amount to anything; and so, though there be a paper labeled a bill of exceptions, if it is not signed by the judge, it still amounts to nothing. Though a record recites the existence of a thing in a certain other record, it will count for nothing if that other record, itself, shows such recitation is not true. Thus (in illustration) though a judgment record recites the finding of due and proper service of process on the defendant, that, standing alone, will be accepted as verity. But if the process found in the record itself shows that there was no service, the judgment recital counts for nothing. Cloud v. Pierce City, 86 Mo. 357, 367-369; State ex rel. v. Fisher, 230 Mo. 325, 338, 130 S. W. 35, Ann, Cos. 1912A, 970; Smith v. Black, 231 Mo. 681, 691, 132 S. W. 1129; Woodruff v. Lumber Co., 242 Mo. 381, 386, 146 S. W. 1192; Norton v. Reed, 253 Mo. 233, 251, 161 S. W. 842; Williams v. Grudier, 264 Mo. 216, 225, 174 S. W. 387; Levee Dist. v. Securities Co., 268 Mo. 654, 663, 187 S. W. 852.

This rule was applied to an abstract of a record. It was recited in an abstract of the record proper that the bill of exceptions was signed by the judge; but the paper, itself, purporting to be the bill of exceptions, showed that it was not signed, and the Supreme Court disregarded the statement that it was signed and held it to be no bill. State v. Griffin, 249 Mo. 624, 155 S. W. 432.

But it is suggested that while the abstract of the bill of exceptions does not show that it was signed, neither does it show that it was not signed, and therefore the statement in the record proper that it was "duly filed" is not contradicted by the bill itself. Assuming, as we shall, that under our rule the words "duly filed" imply a statement that it was signed, that is only a statement that some bill of exceptions was signed, and, when a bill is produced in the abstract as the one meant, it must be a signed bill.

Again, it is said that if the respondent claims the bill was not signed he should file a counter abstract. But it is the duty of the appellant to show himself entitled to the bill without aid from the respondent. If the appellant's abstract on its face should show a proper bill (as that it had the name of the judge appended) he would be prima facie entitled to his bill, and it would devolve upon the respondent, if he denied a signing, to file a counter abstract. But this he need not do when the appellant fails in the first instance.

There is another reason why appellant's abstract cannot be accepted, viz., the bill of exceptions is not identified either at the beginning or end. The abstract of the record proper, after stating that motions for new trial and in arrest were overruled and that an appeal was taken, ends, abruptly, with the statement that, "The bill of exceptions of both defendants was duly filed." On the next page, under the heading, "Bill of Exceptions," is this: "The bill of exceptions, omitting formal parts, is as follows." Then follows a copy of evidence, verdict, judgment, motions for new trial, and in arrest. At the end, after reciting the overruling of motions for new trial and in arrest, the bill abruptly terminates...