Butler County v. Graddy

| Mo. | Dec 5, 1899

ROBINSON, J.

This is an action commenced by Butler county against W. O. Graddy, former treasurer of said county, and the other defendants as securities on his official bond as treasurer of said county, to recover $24,000 the penalty of said bond. This action is based on the conduct of Graddy in paying certain warrants upon several funds which it is alleged had been improperly transferred by the county court of Butler county. It is contended by counsel for plaintiff that under section 844, Revised Statutes 1889, the county court, Under the circumstances of this case, was powerless to make such transfer. The answer is a general denial, coupled with a plea of the three years’ statute of limitations in bar of the action. The defendant also set up the order of the county court transferring the fund in question, and Graddy’s settlements with the county court, as adjudications of the matters involved in the case. The reply denied generally the new matter contained in the answer. There was a trial by jury. At the conclusion of the plaintiff’s evidence, the circuit court, by an instruction in the nature of a demurrer to the evidence, directed a verdict for defendants.

The appeal in this ease was taken under section 2253, Revised Statutes 1889, by filing in this court a certified copy of the judgment and the order granting the appeal. By that section it is provided that "the appellant or plaintiff in error shall cause to be filed in the office of the proper appellate court, in cases of appeal .... a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript, a certified copy of the record entry of the judgment, order or decree appealed from in said cause, showing the term and day of the term,,month and year upon which the same shall*have been rendered, together with the order granting the appeal, and shall thereafter, within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court, file printed abstracts of the record of said cause in the office of the clerk of such appellate court,” etc.

The plaintiff’s counsel, however, instead of filing a printed abstract in conformity with this section and rule eleven of this court, have filed what they characterize “Abstract in lieu of full transcript,” embracing ninety-two pages. An examination of this abstract discloses the following only: The pleadings, abstract of testimony, exceptions to the action of the court in admitting and excluding evidence, the instructions given by the court at the close of plaintiff’s evidence directing a verdict for defendant, plaintiff’s exceptions to the court’s action in giving same, motion for a new trial and the rulings and exceptions thereto. The abstract concludes with the following statement: “The defendant” (meaning plaintiff doubtless) “then files its affidavit for appeal, which said appeal is granted to the Supreme Court, and plaintiff is allowed ninety days within which to prepare and file bill of exceptions.” It will, therefore, be seen that the plaintiff has failed “to comply with section 2253 of the Practice Act or rule eleven of this court. The so-called abstract does not contain a single record entry or any statement as to what the record shows, except the pleadings, testimony, the motion for a new trial and the rulings of the court and the exceptions of counsel thereto. The abstract presented by the plaintiff utterly fails to show that the bill of exceptions was properly filed, much less that it was filed in time. The abstract filed under the provision of the section above mentioned, must show all the essential facts to give this court the right to review the exceptions taken in the trial court, either by setting out a copy of the record entries entire, or by stating them therein in narrative form, and when the bill of exceptions is filed in vacation the abstract must show that it was filed in due time, otherwise this court can not consider the questions involved therein.

The abstract filed in this case fails to disclose any statement or record entry showing that any bill of exceptions was ever filed in the case. Indeed, no statement is made in the abstract that even a judgment was rendered in the case. This point of the case has been directly passed upon by Division No. One of this court in the Western Storage and Warehouse Co. v. Glasner, 150 Mo. 426" court="Mo." date_filed="1899-06-14" href="https://app.midpage.ai/document/western-storage--warehouse-co-v-glasner-8013232?utm_source=webapp" opinion_id="8013232">150 Mo. 426, where, in circumstances like the present, it was held that when a case is brought to this court on a certified copy of the judgment entry and the order granting the appeal, the appellant’s abstract must show not only that the bill of exceptions was filed, but that it was filed in proper time. This case is so recent, and the question here is there so tersely disposed of and the authorities cited, that we do not deem it necessary to enter upon a further discussion of the question at this time. There being nothing in the abstract presented by the plaintiff showing that any bill of exceptions was ever filed, the appeal will therefore be dismissed for failure to comply with the imperative provisions of the statute and the rules of this court.

Gantt, C. J., Burgess, Brace, Marshall and VAnmANT, JJ., concur ; Sherwood, J., not sitting.