153 Mo. App. 219 | Mo. Ct. App. | 1910
Plaintiff below, appellant here, filed an account as a claim against the respondent, administratrix, in the probate court of the city of St. Louis, the account being for $371.20, for “legal services •rendered in collecting eighteen hundred and fifty-six dollars and fifty-seven cents from the Pittsburg Life & Trust Company as per agreement of twenty per cent,” also for three items, amounting to $5.50, for sums of money paid out by plaintiff for certain costs, etc. Beyond this account no other statement of the cause of
It appears from the abstract of the record proper that on January 11, 1910, and during the December term, 1909, of the circuit court, “plaintiff’s bill of exceptions was by the court approved, allowed, signed, sealed, ordered filed, and- thereupon on the day and at the term last aforesaid, filed with the clerk of said court, all of which is shown by orders of record of that date (Book 230, page 465). Said bill of exceptions, omitting captain and formal parts, is as followsThen follows the bill of exceptions. It also appears by the abstract of the record proper that the trial of the cause was begun in the circuit court of the city of St. Louis on January 23, 1909, during the December term, 1908, by the court and a jury, and was concluded on January 23, 1909, during that December term. It further appears from the abstract of the bill of exceptions that it was. signed by the Hon. Daniel D. Fisher, he signing, as “Judge of Division No. 2 of the circuit court of the city of St. Louis, State of Missouri, in and for the Eighth Judicial Circuit on the date aforesaid, that is, January 11,1910.” It does not appear that the bill of exceptions was approved or consented to by any attorney for defendant, while it does appear that the bill of exceptions was prepared and submitted by the attorneys for the appellant.
The counsel who argued this point in the case at bar for appellant cites Berry Bros. v. Leslie, 131 Mo. App. 236, 110 S. W. 685, and Ranney v. Packing Co., 132 Mo. App. 324, 110 S. W. 613, as supporting his contention, and in argument before us denied the application of the cases cited by counsel for respondent, and claimed that the remark of Judge Goode in Patterson v. Yancey, supra, l. c. 692, that this court ruled “that the bill of exceptions was properly authenticated by the signature of Judge Fort, without ruling that it would have been invalid had Judge Evans signed it,” is to be held as a strong intimation, judging the opinion by the trend of its reasoning, that it would have been valid if signed by Judge Evans, the judge of the circuit in which Carter county was included when the bill was signed and filed and made of record.
Section 2032, Revised Statutes 1909, provides that “in any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct,
The question presented for consideration, arising out of that section, is as to whether there is sufficient in the record to show us that the Honorable J. Hugo Grimm had gone out of office as judge in Division No. 2 of the circuit court and the Honorable Daniel D. Fisher was either the successor or the acting judge, presiding in that division — that being the division in which the case was heard — at the time the hill was presented, signed and admitted to record, in such sense as to warrant him, under the provisions of the statute, in signing the bill of exceptions tendered by the attorneys for plaintiff below, it appearing that it had not been agreed to by counsel for the defendant nor filed with their consent.
The act of the judge of á court of general jurisdiction in allowing exceptions and signing the bill preserving them, while a judicial act, “to be performed by a judge under the sanction of his oath of office,” (Patterson v. Yancey, supra, l. c. 687), has always been recognized in this state as under the control of a superior court by mandamus, “not to advise the judge how he shall act but that he shall move in the matter.” [State ex rel. Millett v. Field, 37 Mo. App. 83, l. c. 95.] This is the rule prevailing generally. See High, Extraordinary Legal Remedies (3 Ed.), secs. 199 to 215a; the mere act of signing and approving, the bill of exceptions, however, being held to be of a ministerial nature, although a legal discretion is to be observed in determining the character of the particular bill to be signed. [High, supra, sec. 201.] From the time of the opinion rendered by Judge Soott in 1860, in Walker v. Stoddard Circuit Judge, 31 Mo. 123, down to the latest case which has come under our observation, covering the matter of controlling the action of an inferior court by mandamus, that of State ex rel. Priddy et al. v. Gibson, 187 Mo. 536, 86 S. W. 177, a decision by Judge Lamm, speak
An examination of the' cases cited by counsel, as well as of others relating to the signing of bills of exception, does not throw very much light on this point as it arises in this particular case. In all of them, it is -true, there is discussion of the law governing the signing of bills of exception, but no decision involving the construction of section 2032 as applicable to the situation created in the Eighth Judical Circuit by the statutes relating to that circuit, has, so far as we know, been presented for adjudication in connection with that section. That situation is now before us and demands consideration of the mode of procedure and practice peculiar to the circuit court of the Eighth Judicial Circuit, which circuit comprises the city of St. Louis alone.
The law relating to that court is now article 8, of chapter 35, sections 4147 to 4167, Eevised Statutes 1909. That court, as at present constituted, is composed of Twelve divisions. While section 4149, as published in the revision of 1909, provides for but two divisions for the trial of criminal causes, by Act of March 21, 1905 (Laws, 1905, p. 127), three such divisions are provided for, divisions Nos. 1 to 9 having jurisdiction of civil, and Nos. 10, 11 and 12 of criminal, causes. After sections providing for the twelve divisions and for the salary of the judges, follows section 4149, which provides, among other things, for two (or as amended, for three) divisions for the trial of criminal causes, and that the judges assigned to the criminal divisions shall sit in those divisions “for the trial of criminal causes then or thereafter pending in said court, and fór the disposition of such other business arising under the criminal jurisdic
As that circuit and its courts are within the appellate jurisdiction of this court, we not only have before us the law which provides that its judges are to rotate in service between the civil and criminal divisions, but we are also warranted in taking judicial notice of the fact that at the time when this bill of exceptions was filed, the Honorable J. Hugo Grimm' and the Honorable Daniel D. Fisher were judges in office, serving as circuit judges of the Eighth Circuit. It is not thought, however, that we can take judicial notice, in the absence of anything in the record showing it, of the fact as to the length of time a particular judge was assigned to a particular room or division, nor can we take judicial notice, outside of the record in each case, of which one of the judges, at any specified time, was in office and exercising the functions of judge in any particular room or division. We have nothing in this record to enable
It is apparent from the abstract of the record and bill of exceptions, that the Hon. • J. Hugo Grimm was the judge before whom the cause was tried, presiding in Division No. 2 of the court, and it is stated that the trial was begun on the 23d of January, T909, during the December, 1908, term of the court and was concluded on that day. It is fair to infer, therefore, that Judge Grimm presided at the trial from beginning to end. It is recited in the record proper as set out in the abstract, that on the 26th day of January, 1909, during said December term and within four days after the rendition of the verdict, the motion for new trial was filed and that it was continued to the February, 1909, term of the court, when it was overruled, and that an appeal was granted during that term to this court and that an extension of time for filing the bill of exceptions was granted down to and including the 12th of January, 1910, and that the bill of exceptions was filed on the 11th of January, 1910, that is to say, it was filed within the time granted by the various extensions of time. The entry in the abstract of the record proper recites that on this 11th of January, 1910, and during the December, 1909, term, the plaintiff’s bill of exceptions was by the court approved, allowed, signed, sealed, ordered filed and filed. In this respect it corresponds to
It was not necessary that Judge Fisber should have been tbe immediate successor of Judge Grimm— be might have been, or might not: another judge may have presided in that division between tbe incumbency of Judge Grimm and that of Judge Fisber; tbe statute requires tbe then acting judge to sign. We have a right to assume that Judge Grimm bad, under tbe statute and tbe rule of court, been transferred to some other division, whether criminal or civil is immaterial. While we take judicial notice of tbe fact that Judge Grimm was elected for a term of office as a circuit judge which has not expired, it is clear from this record here before us, that be bad “gone out of office,” so far as concerns presiding as judge of Division No. 2; be bad gone from that division, to all intents and purposes as entirely as if bis office as circuit judge bad terminated; it certainly bad terminated for tbe time being, unless be and Judge Fisber were both judges in that division at one and tbe same time. As our law makes no provision for two judges presiding at one and tbe same time in tbe same division, this could not be. [Ranney v. Packing Co., supra.]
No question of tbe tenure of office of the Hon. J. Hugo Grimm or of the entering upon office of tbe Honorable Daniel D. Fisber is involved, no disability on
Bearing in mind what is said by our Supreme Court in Goddard v. Delaney, State ex rel. v. Eggers and Haehl v. Railroad, supra, to the effect that while the circuit court of the city of St. Louis, comprising the Eighth Judicial Circuit, is one court, composed of many parts called divisions, yet each division for certain purposes, among others the disposition and trial of causes to their conclusion, unless pending their determination a change of venue has been awarded from one division to another, or from that circuit to another, is in itself a complete court, independent of each of the other divisions,- we therefore hold that it clearly appears by the record in this cause that at the time when the bill of exceptions was settled, signed, approved and filed, the Honorable Daniel D. Fisher was the acting judge of Division No. 2 of the circuit court of the city of St. Louis, the divis
Counsel for respondent rely upon Patterson v. Yancey, supra, as decisive in their favor. As before remarked, we do not think that case meets the one at bar. Nor can we reconcile-it with the great weight of authority in this state. Under all the decisions and the law, there is but one judge qualified to sign a bill of exceptions, and there can be but one judge, whether de facto or de jure for one division of any one court sitting and holding that court. [Ranney v. Packing Co., supra; Martin v. Merc. Town Mut. Fire Ins. Co., 124 Mo. App. 221, 101 S. W. 672.] The bill must be signed by the judge who is presiding over the court at the time the bill of exceptions is tendered and filed, the judge or person acting as judge, who signs it being at the time presiding in that court, either by special election or by assignment as provided by law. In State ex. rel. v. Gibson, supra, it is held that because Judge Gibson had gone out of office mandamus would not lie against him to sign a bill of exceptions.
The reason which lay at the foundation of the old rule, that if a judge who had tried a case went out of office pending action on a motion for a new trial, his successor must, as of course, grant a new trial, has been taken away by modern methods of court procedure, under which the official reporter takes down stenographically and verbatim all the proceedings at the trial, often indeed such occurrences in the progress of the case as rulings on motions, etc. By our modern practice a judge has before him, in the notes of the official reporter, all that took place in the cause, and it is within his power, when a bill of exceptions is tendered for his approval, to satisfy himself as to its correctness; it is easy for the bill to be, in the language of section 2032,
II. Turning to the case on its merits, a careful reading of the testimony and of the proceedings at the trial, satisfies us that there was no reversible error committed. As to most of the points urged for a reversal, exceptions were not taken and preserved in such a manner that we can consider them.
It is urged that the defendant below, not having denied the execution of the contract relied on under oath, was not at liberty to contest it at the trial. That objection has no place in this case. Plaintiff did not
It is urged that the execution of the contract not having been denied under oath, its validity or fraud connected with obtaining it, is not open to inquiry. This is not the law. Even in a case where the maker of a note has failed to deny its execution under oath and has admitted its execution, its legality is open to contest without a denial of the execution of the note, verified by affidavit. [Wells v. Hobson, 91 Mo. App. 379.] It is held in Johnson v. Woodmen of the World, 119 Mo. App. 98, 95 S. W. 951, that though the execution of a contract in writing is not denied, it is open to the defendant to prove that it never existed or that the' consideration for it had failed. The rule laid down in these cases applies with even more force in the case at
Over and above all, and fatal to the case of plaintiff, is the fact that proper objections and exceptions were not made during the trial. They are first made in the motion for a new trial as to some, as to others, by the brief in this court. That cannot be done. [Kelly v. Thuey, supra, l. c. 437.]
In the motion for new trial in this case, the allegations of error are general, that the court erred in the reception or exclusion of testimony. But when we look into the abstract of the proceedings a.t the trial, we fail to find objections and exceptions that cover the points now presented and urged, upon us as a ground for reversal. Examining all of them, we do not think any of them are tenable. No attack is made in the motion for new trial on the instructions asked. We have read all of the rather voluminous abstract of the testimony, as the learned counsel for the appellant challenges it as lacking in any probative facts which can sustain the