Whealen v. St. Louis Soft Ball Ass'n
| Decision Date | 17 December 1946 |
| Docket Number | 27052 |
| Citation | 198 S.W.2d 371 |
| Parties | WHEALEN v. ST. LOUIS SOFT BALL ASS'N |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Edmund W. Albright and Russell J. Horsefield, both of St.Louis, for appellant.
Theodore C. Eggers and J. A. Gochenour, both of St.Louis, for respondent.
McCULLEN PER CURIAM
Appellant brought this action as plaintiff against respondent as defendant to recover $ 5,000 as damages for personal injuries sustained by plaintiff while he was playing in a soft ball game at the St.Louis Soft Ball Association Park in the City of St.Louis. At the conclusion of plaintiff's evidence at the trial, the court, on defendant's request, directed a verdict for defendant. Following an unavailing motion for a new trial, plaintiff appealed.
Before proceeding to the merits of the case, it is our duty to discuss a defect in the transcript of the record filed by plaintiff as appellant herein. Rule 1.04 of the Supreme Court Rules, by which this court is governed, requires, among other things, that: 'The full transcript shall always include * * * the judgment or order appealed from * * *.'
It appears from the transcript of the record herein that the court directed a verdict for defendant, which verdict was signed by a juror as foreman of the jury and entered of record, but the transcript does not show that a judgment was ever entered on said verdict. The question thus presented is whether this court has the right to entertain the appeal in the absence of a showing of the judgment appealed from. The cause was originally argued and submitted in this court by both parties without any question being raised as to such defect. It was presented and submitted as though the transcript contained everything required by law. We dismissed the appeal on the ground that the transcript of the record was fatally defective because it did not contain a copy of the judgment appealed from. Later, on appellant's motion we set aside the dismissal and granted a rehearing, and the cause was reargued and resubmitted.
We are aware that decisions have been rendered by our appellate courts holding that the failure to bring up to the appellate court the judgment in a cause in which an appeal was taken was a fatal defect which required the dismissal of the appeal. However, all such decisions, except one which we shall presently refer to, were rendered prior to the adoption of our New Code of Civil Procedure (Laws Mo.1943, page 353 et seq., Mo.R.S.A. §§ 847.1-847.145), and prior to the adoption of the new Rules of the Supreme Court.
After careful consideration, we have reached the conclusion that the drastic action of dismissal of the appeal is not required in this case. The fact that the transcript of the record fails to show a judgment does not necessarily mean that no judgment was entered in the trial court. On the contrary, we know that a judgment was actually entered of record on the verdict in the trial court.
Rule 1.03 of the Rules of the Supreme Court provides: '* * * The court may of its own motion, at any time, require the clerk of the trial court to send up a complete transcript or any portion thereof or any original documents or exhibits.'
Acting under said Rule 1.03, we have of our own motion required the clerk of the trial court to send up (at the cost of appellant) a certified copy of the judgment of that court in this cause, from which it appears that a judgment was actually entered on the verdict in this cause on December 6, 1945, which judgment, of course, became final when plaintiff's motion for a new trial was overruled. (Rule 3.24, Rules of Supreme Court)
The one case decided on this point since the new Civil Code and the new Rules of the Supreme Court went into effect is Bales v. Jefferson City Lines, Mo.App., 192 S.W.2d 27, decided December 3, 1945. In said case there was no judgment shown in the transcript of the record on appeal. Before the cause was submitted to the Court of Appeals the respondent therein filed a motion to dismiss the appeal on the ground of the alleged failure of the appellant to file 'A full transcript of the record in the cause,' as required by Section 135, page 393, Laws of Missouri 1943, Mo.R.S.A. Sec. 847.135. Also, before the time set for hearing of the cause appellant's attorney filed an affidavit setting forth how the transcript of the record had been received from the official court reporter, presented to the judge of the trial court, and approved by the attorneys for both sides as well as by the judge. The attorney for appellant also filed on the same day an affidavit of the Clerk of the Circuit Court where the cause was tried showing that a judgment had been rendered in the cause in the Circuit Court on December 15, 1944. Attached to said affidavit was a copy of said judgment. On the date that the cause was set for hearing appellant filed a 'motion to have judgment included in transcript,' and alleged that 'by inadvertence of the court, the attorneys representing both parties, and the court reporter, the judgment * * * was not included in the transcript.' Leave was prayed by appellant to insert the certified copy of the judgment in the transcript. The court, nevertheless, held that the transcript was defective in that it did not contain a copy of the judgment appealed from, as required by Rule 1.04(a) of the Rules of the Supreme Court. The court dismissed the appeal, holding that a transcript which did not contain a copy of the judgment appealed from was defective; that such defect required dismissal of the appeal unless 'good cause' was shown for refraining from such dismissal or the interests of justice required suspension of the rules, under Supreme Court Rule 1.15. The court held that 'good cause' had not been shown and that there was nothing in the record to show that the interests of justice required the court to refrain from dismissing the appeal. In reaching its conclusion the court cited and discussed Section 135, Laws of Missouri 1943, pages 393, 394, Mo.R.S.A. Sec. 847.135, and Section 129 Laws of Missouri 1943, pages 390, 391, Mo.R.S.A. Sec. 847.129, and Rule 1.15 of the Rules of the Supreme Court.
It will be observed that the vital fact upon which the decision in said Bales case, supra, turned was the same as in the case at bar, namely, that no judgment appeared in the transcript of the record. Notwithstanding the great respect we have for our brothers of the Kansas City Court of Appeals, we finally find ourselves unable to agree with the conclusion reached by them.
We are of the opinion that the defect in the transcript is not a matter going to the jurisdiction of the court over the subject matter. It is only a procedural defect or irregularity.
Our Supreme Court has said: McClain et ux. v. Kansas City Bridge Co., 338 Mo. 7, 88 S.W.2d 1019, 1022.
In the case at bar, although the transcript of the record, as filed by plaintiffappellant, did not contain a copy of the judgment, it did and does contain a copy of the notice of appeal, and is properly certified to by the Clerk of the Circuit Court of the City of St. Louis as being a copy of the original transcript of the record filed in this cause in said court. Furthermore, we have in our files in this court the separate notice of appeal that was filed in the Circuit Court on February 13, 1946, and filed in this court on February 15, 1946. From said notice of appeal we find that plaintiff appeals to this court 'from the judgment against him and in favor of the defendant entered in the above action on the 6th day of December, 1945.' We also find from the transcript of the record that there was a trial of the cause, that witnesses appeared and were examined, and that a verdict in favor of defendant was returned and filed under the direction of the court. From all of these matters, which are shown in the transcript before us, we believed that we were justified in exercising the power given to appellate courts by Supreme Court Rule 1.03, supra, and, acting thereunder, we required the Clerk of the Circuit Court to certify up to us a copy of the judgment entered in the cause in that court. We believe that said rule was intended to take care of just such a situation as we have before us and that the defect in the transcript is not incurable. Action by the appellate court under said rule 1.03 is calculated to prevent the dismissal of causes in the appellate courts on mere irregularities or slip-ups in procedure caused, as here, by the failure of the court reporter to include in the transcript of the record a copy of the judgment. Having ascertained, by the exercise of the power given us under rule 1.03, supra, that a judgment was in truth and in fact actually entered in this cause in the trial court on the date mentioned, it necessarily follows that we should, by order, correct the transcript of the record by including therein said judgment. We have made such an order and therefore have before us 'a full transcript of the record in the cause, including the bill of exceptions,' as required by Section 135, Laws Mo. 1943, page 393, Mo.R.S.A. § 847.135, and Supreme Court Rule 1.04.
We believe it is proper that we should refer to the case of Evans, appellant, v. City of St. Louis, Mo.Sup., 198 S.W.2d 9, decided by our ...
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