158 Mo. App. 249 | Mo. Ct. App. | 1911
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Upon the record reaching this court, it was discovered that it omitted to disclose the filing of a bill of exceptions and the hearing of the case was passed to allow defendant an opportunity to proceed in the trial court to the end of supplying the deficiency in the record by obtaining an order nunc pro tunc showing the bill of exceptions to have been filed, if such were the fact. As, in the view we take, the matter must he
It appears a bearing was bad in tbe circuit court on defendant’s motion for a nunc pro tunc order to show tbe filing of tbe bill of exceptions as of June 25, 1910, and on tbis bearing tbe purported bill of exceptions itself and certain records were introduced, together with some oral testimony. Tbe court sustained tbe motion and made an order amending tbe record nunc pro tunc which recites on its face that tbe court fonnd from tbe record and files in tbe case tbe bill of exceptions was filed June 25,1910, within due time, in vacation of tbe court, under an order extending tbe time for filing there until July 1st-of that year. Plaintiff objected and excepted to tbe introduction of oral testimony touching tbe matter and in due time filed bis motion for a rehearing, after tbe order was made, which was overruled,' and made up, took and filed bis bill of exceptions on the nunc pro tunc proceeding and duly appealed to tbis court on that question. After plaintiff’s bill of exceptions on tbe nunc pro tunc proceeding was filed and bis appeal perfected from tbe order amending the record nunc pro tunc, tbe parties, both plaintiff and defendant, appeared in tbis court and a suggestion of .diminution of tbe record was made. A writ of cer-tiorari was ordered issued on tbis suggestion, but tbe parties in open court waived its issue and requested permission to file here, as tbe return to that order,, plaintiff’s printed abstract, including all of tbe record entries pertaining to tbe nunc pro tunc order, together • with tbe bill of exceptions taken by plaintiff to tbe action of tbe trial court in amending tbe record nunc pro tunc, and tbis request was granted by tbe court. In furtherance of bis appeal from the order of tbe court made nunc pro tunc, plaintiff bad printed a complete. abstract of all of tbe proceedings touching that
There can be no doubt that the common law writ of certiorari which prevails with us brings up for review only matters of record and that if the record is sufficient on its face, the presumption goes in favor of the trial court, to the effect that the judgment was
There can be no doubt of plaintiff’s right to have the entire nunc pro tunc proceeding reviewed here, on ¡appeal from that order, for such is the course frequently pursued, and it appears that he actually perfected his appeal to that end. [Walker v. State, 102 Ind. 502; 17 Pl. and Pr. 928.] He saved his exT ceptions, filed his motion for a rehearing thereon, which was overruled, excepted to that ruling, preserved all of the evidence and the motion and exceptions in his bill of exceptions, which was allowed, signed, sealed, filed and made a part of the record, and actually perfected an appeal therefrom to this conrt and even printed his abstract, containing all of the record thereon, together with the complete bill of exceptions, for review here. But, upon the parties stipulating that such printed abstract, which contained the whole matter, should be considered by this court as the return to the order for certiorari, the issue of which was waived, his appeal seems to have been abandoned. We can imagine no situation in which the doctrine of estoppel is more justly invoked than here, for, indeed, besides plaintiff’s foregoing his appeal, it devolved upon defendant alone to supply the omission in
Looking into the evidence on which the court made the nunc pro tunc entry, there is nothing whatever therein in the nature of a record, a minute, a note or memorandum found in the records of the circuit court, the minute book, the judge’s docket, or the files of the case, on which to base an order nunc pro tunc to the effect that defendant’s bill of exceptions in the main case was filed June 25, 1910. It appears therein that the time for filing defendant’s bill of exceptions was extended by the court until July 1, 1910 and that a bill of exceptions was sent to the clerk of the court by express in due time, so that it should have reached him on June 25th. This bill of exceptions was found unsealed in the clerk’s office but it bore no file mark whatever. There can be no doubt that, if this document bore the file mark of the clerk as of date June 25th, it, of itself, would furnish a sufficient note or memorandum on which to base the nunc pro tunc order, for the bill itself contained an order over the signature of the judge, as is usual, for the clerk to file it. We say this in view of the fact that the purported bill of exceptions was found in the clerk’s office and probably among the files of the case and it appears the court was in vacation at the time. [Haydon v. Alkire Grocery Co., 88 Mo. 241.] But no file marks whatever appear on the purported bill of exceptions. The only document or memorandum which defendant relies upon as a note or memorandum in support of the nunc pro tunc entry is the following:
*259 “Rean A. Callier; Plaintiff, v. Chester, Perryville & Ste. Genevieve By. Co.
“In the Circuit Court of.Dunklin County, State of Missouri.
“Now on the 25th day of June, 1910, in the vacation of court, comes the defendant and files its hill of exceptions in the above entitled cause, within the total time heretofore granted in that behalf by the various orders of said court and the judge thereof in vacation, said hill of exceptions having been duly signed by Honorable J. L. Port, Judge of said court, who tried this cause.
“Piled and recorded June 25, 1910.
“Bert Turner,
“Clerk of said Court.”
But this paper was not found among the files of the case nor in the clerk’s office at all, though a copy thereof bearing no file marks whatever was. This document, it is said, was prepared for entry upon the record by defendant’s counsel and was mailed to the clerk of the circuit court, along with the copy thereof. Defendant’s counsel received it in return, in due course of mail, some one or two days after June 25, 1910. When it was received by defendant’s counsel, it bore the following words written by the clerk on the bottom thereof: “Piled and recorded June 25, 1910. Bert Turner, Clerk of said Court.” But,, as before stated, this paper was not found among the files of the case nor in the clerk’s office at all, for it was in possession of defendant’s counsel all the time. It is true a carbon copy of this paper was found in the files of the case, hut on this carbon copy there were no. marks whatever suggesting that it had ever been filed or that it had in any manner been connected with the record of the court in this cause. At most, the carbon copy was merely deposited or lodged in the clerk’s office without filing. The rule is strict in this state to the effect that a nunc pro tune order may not be made at a
The record proper is obviously sufficient to support the judgment, and, as we are not permitted to review the matters of exception in the state of the record, the judgment should be affirmed. It is so ordered.