171 Mo. 68 | Mo. Ct. App. | 1902
On October 8, 1901, the first day of the present term, Lewis C. Gabbert, the administrator of Thomas Crawford, whose name appears in the transcript filed as plaintiff and appellant, filed his motion to substitute his name as appellant in lieu of his intestate, who died after taking the appeal in this case, and that motion was denied October 26, 1901, and at the present term.
On November 5, 1901, he moved the court to set aside its order denying him the right of substitution and leave was given to file briefs for and against this motion, and the motion is now submitted on these briefs, and the copies of record of ‘the circuit court filed.
The facts of record are that on December 18, 1900, Thomas Crawford filed his petition in the circuit court of Buchanan county, alleging that by the negligence of defendant he received personal injuries and was damaged in the sum of $2,000. At the January term, 1901, defendant filed its answer, and the said Crawford his reply. The cause came on for trial at the January term, 1901, and resulted in a verdict for said plaintiff (Crawford) for $2,000, and judgment was rendered accordingly on February 12, 1901.
Afterwards on February 15, 1901, the defendant moved the court for a new trial, alleging among other grounds that the court erred in giving instruction numbered 3, ashed by plaintiff, for the reason that the same is contrary to and in violation of article 2 of the Constitution of Missouri; “that the court erred in holding that the amendment of section 28 of article 2 of the Constitution of Missouri proposed by the Fortieth General
The grounds of the motion that the- verdict was •against the weight of the evidence and that the verdict was excessive, were withdrawn by defendant by mutual consent.
To the action of the court in granting a new trial the said plaintiff Crawford then and there duly excepted, and then and there, on March 6, 1901, filed his affidavit for appeal from the order granting a new trial, and his appeal was allowed, and a transcript of the judgment and the order allowing the appeal was duly certified to this court by the clerk of the circuit court on March 15, 1901, and the docket fee having been paid March 23,1901, the said transcript was filed in the office of the clerk of this court. And afterwards on March 26, 1901, on motion of the said plaintiff Crawford, the said
After the death of Thomas Crawford, Lewis C. Gabbert was appointed administrator of his estate in the probate court of Buchanan county, and qualified as such, and thereafter on May 4, 1901, and during the same term at which the judgment had been rendered in favor of said Crawford and the motion for new trial sustained, the said Lewis C. Gabbert entered his appearance to said action in the circuit court of Buchanan county, and the defendant herein entered its appearance and said Gabbert was made party plaintiff, and thereupon by the agreement of both parties said administrator was granted leave to file his bill of exceptions during the May term, 1901, of said Buchanan Circuit Court. And afterwards and during said May term said administrator filed his bill of exceptions, which was signed by the judge of said court, and made' a part of the' record of this cause, and thereupon on October 8, 1901, said administrator moved this court as aforesaid to entitle this cause as Lewis C. Gabbert, Administrator of Thos. Crawford, deceased, appellant, v. The Chicago Rock Island & Pacific Railroad Company, respondent, and his right to have the same done presents the question for decision at this time.
I. The objection by the defendant is that the order of the circuit court purporting to revive the suit in the name of Gabbert, the administrator, was void, and said court was without jurisdiction to do so because by the allowance of the appeal that court lost jurisdiction of said case and had no power to permit such revivor.
In the determination of this controversy we must call to our aid certain fundamental principles. Thus, it is settled law in this State that during the whole of the term in which any judicial act is done, the proceedings
And it is equally well determined that this power of the court over its own records, and its right to amend, correct and complete the same is not affected by the fact that an appeal has been taken from its judgment. [Exchange Bank v. Allen, 68 Mo. 474; DeKalb Co. v. Hixon, 44 Mo. 341; Jones v. Ins. Co., 55 Mo. 342; Gamble v. Daugherty, 71 Mo. 599.],
"While a different doctrine was announced in Ladd v. Couzins, 35 Mo. 513, that case was subsequently discredited in Cambie v. Daugherty, supra, so that it is the settled doctrine that though an appeal transfers jurisdiction of the case, still the trial court has full jurisdiction and control of its own record and may notwithstanding the appeal, amend, correct and perfect the same so that it shall show exactly what transpired in said court. [State v. Logan, 125 Mo. 22.]
Counsel cite Burgess v. O’Donoghue, 90 Mo. 299, but in that case the court was called upon, not to invade the right of the circuit court to correct during the term any error in its judgment, or to prevent it from correcting by nunc pro tunc order some misprision of its clerk, but to prevent the circuit court from setting aside a sale made at a subsequent term, in. pursuance of its judgment rendered at a former term, and from which an appeal had been taken without a supersedeas and the judgment affirmed in this court, and no doubt can be entertained that the judgment of this court on' that state of facts was correct, but it does not in the least affect the proposition now being discussed.
Proceeding a step further: By statute .law, since
Coming now to the record before us, it appears that the record was not complete when the original plaintiff, Thomas Crawford, took his appeal; A trial had occurred in which he had recovered judgment, and a new trial had been granted, to which action he had excepted. He had the right to appeal from that order granting a new trial by virtue of the amendment of 1891 to section 2246, Revised Statutes 1889. [See Laws 1891, p. 70.] And in order to present his appeal in an intelligible form to this court, he was entitled to have his exceptions taken in the circuit court made a part of the record of that court, and it was a part of the inherent jurisdiction of that court to complete the full record of the trial in that court and cause its rulings therein to be embodied in a bill of exceptions, approved and signed by the judge thereof and filed in said court. This right it had irrespective of any appeal that might be taken from its said order or any writ of error that might issue to it from this court, without in any manner infringing upon the jurisdiction of this court to determine- said case on appeal. In so doing it would merely be completing its own record. And it had the power to do this at any time during the term or could by its order of record extend the time beyond the term. Indeed, this court has gone so far as to hold that an appellant is entitled to the whole record upon appeal, and where the court had granted time to file a bill of exceptions and this time extended beyond the day when by law he was required to
To correct what we deem an incorrect construction of the statute in those cases, we have at this term promulgated a rule of this court that such extension of time shall not relieve the party appealing from filing his short transcript of the judgment and order granting the appeal within the time fixed by section 812. [Rule 28,169 Mo., page VII, after page 685.]
And before the rulings just adverted to, it was the practice of this court to refuse to affirm a judgment for failure to file the transcript where the term of the circuit court extended beyond the time allowed to file the transcript in this court, on the theory that the circuit court might modify or set aside its judgment at any time before the final adjournment of the term at which it was rendered. What then .results, if the original plaintiff, Crawford, had lived until the end of the January term. 1901? No doubt whatever could exist that he could have filed his bill of exceptions at any time, before its adjournment. He had perfected his appeal, as we. now hold he should have done by the short method, without prejudicing his right to have his exceptions incorporated into the record, and the circuit court still retained jurisdiction for that purpose. This being true, 'did his death forever cut off this right? Could not his administrator have those exceptions made part of the record?
We think he could by having the cause revived in his name during that term of the^cóurt. This we say, assuming that it was a cause of action which survived to the personal representative, which we will discuss later on. The court made the order substituting the plaintiff without a scire facias to defendant to show cause against it and the defendant, as the record shows, voluntarily entered its appearance and agreed with skid administrator that he should have until the May term to file the bill of exceptions. When the defendant thus
In Farrell’s Adm’r v. Brennan’s Adm’rx, 25 Mo. loc. cit. 94, it was held that where upon the death of a party plaintiff his administrator is made plaintiff as his representative without the appearance of the defendant or notice to him, the irregularity will be cured by the appearance of the defendant and the granting of a continuance on motion of defendant. Judge Scott saying that ‘ ‘ this surely healed the error. ’ ’ And a similar ruling was made in Ferris’ Adm’r v. Hunt, 20 Mo. 464, wherein it was said the defendant’s appearance in court and making a motion to set aside the order allowing the cause to be continued against him in the name of the administrator was a sufficient appearance without a scire facias to bring him into court. Here, there was no objection, but a general appearance and a friendly stipulation; and, so far as consent can give jurisdiction over the person, it was ample. [Shockley v. Fischer, 21 Mo. App. 551; Baisley v. Baisley. 113 Mo. 544.]
We have, then, a court of record with the unquestioned right to correct, amend and perfect its record, with full power to set aside its judgment during the term, with a coincident right in the plaintiff to have his bill of exceptions filed and the record completed, and this being so, when both parties consent, we can not see why this revivor had in. this way is not an incident of that court’s jurisdiction to perfect its own record, and the cause having been revived once, it is not necessary to do a useless thing and revive it again in this court. Holding, then, as we do, that in reviving the cause to enable the administrator to file the bill of exceptions taken in the lifetime of his intestate, the circuit court, during the term at which the judgment was taken, was proceeding within its own jurisdiction and in no manner infringing upon any prerogative of this court, it is plain that this court was without jurisdiction to complete said record or allow for that court a bill of exceptions to its rulings. But it is suggested, and at first blush we were inclined to the view, that the administra
But we are here confronted with a long list of cases to the effect that after the appeal was taken the cause was pending in this court, and the circuit court could take no step. We have seen this in no sense interferes with the power of the circuit court over its own records to amend and perfect the same, but the statement that “after'appeal taken the cause is pending in the appellate court, ’ ’ it will be found, in every one of the cases cited, was said of the effect of the appeal after the close of the term of the circuit court, and it will be found that- none of these cases denies the power of the circuit court during the term to set aside the order granting the appeal itself, or denies that during the term the circuit court had plenary jurisdiction of the case and until the term ended it did not lose the-right to correct or set aside its own judgments.
The principle involved is highly important. The law and its underlying reason is stated with singular force and clearness by the Supreme Court of Texas in
Accordingly, we hold that the mere taking of the appeal from the order granting a new trial and filing the short transcript in this court did not deprive the circuit court of its original jurisdiction to make any and all proper orders to perfect its own record, during that term, and as an incident of that jurisdiction it had the power to permit .the cause to be revived in order to let the administrator file the bill of exceptions, already taken, when the administrator had appeared and asked to be substituted and defendant appeared and consented to the order of May 4, 1901, all during the same term.
The appeal taken was returnable to the October term' of this court by express statutory provision.
This conclusion is entirely in harmony with the decisions of this court in Ess v. Griffith, 128 Mo. loe. cit. 59, and State ex rel. v. Gates, 143 Mo. 63. Nothing said in either of these cases contravened the right of the circuit court to have set aside its order granting a new trial and thereby avoided both of said appeals.
Those cases only hold that after the circuit court grants a new trial and the losing party appeals there
II. But as the law never requires an unnecessary thing, the question arises, if the cause of action did not survive to the administrator, why should this court proceed further with this appeal, and retain defendant in court ?
The contention of defendant is that the cause of action died with the original plaintiff Crawford, and thereby the action has abated, whereas the position of plaintiff is that the original cause of action for the personal injuries suffered by Crawford became merged in a judgment which survives to his personal representative, and that the action of the circuit court in setting that judgment aside, was not final, but was suspended by the appeal, and if plaintiff is successful, that judgment will be restored to all of its vigor.
We think that plaintiff is right and that the cause did not abate with the death of Crawford, the original plaintiff, as he had obtained his verdict and judgment and appealed from the order setting it aside. Lewis v. Railroad, 59 Mo. 495, is directly in point. In that case, Lewis sued to recover damages for loss of a leg. He obtained a verdict and judgment in the circuit court and under the law then existing, defendant appealed to the general term of the circuit court of St. Louis, and the judgment was reversed, and plaintiff appealed to this court, and pending his appeal in this court the plaintiff died, and thereupon his administrator came to this court and asked to be made a party and the defendant resisted on the ground that the suit abated on the death
“It is insisted that the-action died with the person, and as the judgment in his favor was reversed, it was thereby entirely destroyed or annihilated, and nothing was left but a simple right to recover, which would abate at his decease. Had the reversal been in a court of last resort, where it would have been necessary to have had a new trial on the merits, this effect might have been ascribed to it. The judgment in that event would not only have been annulled, but all the subsequent proceedings would have been on the original cause of action. But now if the judgment of the intermediate court (the general term) is reversed, the effect is to restore the judgment of the trial .court. [Rankin v. Perry, Adm’r, 5 Mo. 501; Str.ouse v. Drennan, él Mo. 289.] The operation of the judgment is suspended, but new life and validity may be imparted to it. "Where in a transfer of a suit from the circuit court to the Supreme Court, the plaintiff died after it was removed to the latter court, a motion to abate the suit was denied, and it was revived in the name of the personal representatives. The court said that by the recovery in the life time of the injured party, the claim for damages was merged in the' judgment, and became a debt, with which the personal representative was chargeable; that there was . a difference between a simple appeal and an appeal in the nature of a writ of error, the latter merely suspended the judgment of the inferior court, but did not annul it. [Kimbrough v. Mitchell, 1 Head 539.] The correct doctrine seems to be, that where an appeal is in the nature of a writ of error, and only carries up the case to the court of appeals, as an appellate court for the correction of errors that may have intervened on the trial of the case below, and for its adjudication upon the question whether the judgment appealed from should be affirmed, reversed or modified, and the court has no other than appellate powers, to affirm, reverse or modify, then such appeal does not vacate but merely suspends the operation of the judgment.”
If upon a hearing this court should determine that the circuit court erred in granting a new trial, the order of the circuit court to that effect will be reversed and the judgment of plaintiff in that court will be restored in full force and vigor, whereas it is now suspended by the order granting the new trial. [Coatney v. Railroad, 151 Mo. 35.]
Our conclusion is that the motion of the administrator should be sustained.