266 Mo. 218 | Mo. | 1915
Lead Opinion
"Separate actions in ejectment and for the balance dne upon a note were by consent of parties consolidated and tried in the county of Franklin on change of venue from Gasconade county. From a judgment in the consolidated cause defendant, being cast on both issues, appealed and gave two supersedeas bonds in the aggregate sum of $5000. The case was set for hearing upon our docket at this term for April 26. Appellant duly filed a “short-form” transcript of the judgment and order granting an appeal, but failed and neglected to file thirty days before the case was set for hearing and still fails to file any abstract of the record as required by section 2048, Revised Statutes 1909, and by our rules. [Rule 11 of Rules of Supreme Court.] Thereupon respondent moved to affirm the case for failure in this behalf.
The resolving of this question necessitates an examination of the statutes, as also of our rules, permission to make which is given by statute. [Sec. 2049, R. S. 1909.] The applicable part of section 2047, Revised Statutes 1909, is as follows:
“The appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section, and if he fails so to' do, and the respondent shall produce in court the certificate. of the clerk of the court in which such appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, • against whom the same was rendered, the name of the party in whose favor the appeal was granted and the time when the appeal was granted, such certificate shall be prima-facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the appellate court to affirm the judgment so appealed from, and the court shall affirm the judgment, unless good cause to the contrary be shown; and the failure of the clerk to notify the appellant, or his attorney of record, of the completion of the transcript in time to enable him to have the same filed in the appellate. court in the time required by law, shall be considered and is hereby declared to be good cause for refusing to affirm the judgment of the lower court on such motion.”
The applicable part of section 2048, Revised Statutes 1909, which we must consider in connection with section 2047, supra, reads thus:
“The appellant or plaintiff in error shall"cause to be filed in the office of the proper appellate court,*222 in cases of appeals fifteen days before the first day of the term of such court, and in cases of writs of error on or before the first day thereof, 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 entire record of said cause in the office of the clerk óf such appellate court, and within such time, deliver a copy of said printed abstract to the respondent or defendant in error.”
Counsel for respondent insists that the statutory words “the appellant shall perfect his appeal in the manner-and within the time prescribed in the next succeeding section,” require a timely filing of either a perfect transcript, or the filing of both a short-form, transcript and an abstract of the record; and that if both such transcript and such abstract are not filed, respondent (even though appellant has already filed a sufficient short-form, or complete transcript showing the identical facts) may file a certificate of the clerk of the court nisi “stating therein the title of the case, the date and amount of the judgment appealed from,” etc., and thereby become legally entitled to insist as a matter of right upon the affirmance of the case as permitted .by said section 2047. We do not think so; we are of the view that a logical construction of these two sections, of our rules and of the adjudged cases are all against this contention.
The view urged on us loses sight of the facts (1) that respondent does a vain, expensive and useless thing in filing a certificate of the clerk showing the judgment and order allowing an appeal, since all of
“If any appellant in any civil case shall fail to comply with the rules numbered 11, 12, 13 and 15, the court, when the cause is called for hearing, will dismiss the appeal or writ of error; or at the option of the respondent continue the cause at the cost of the party in default. ”
Till we change the penalty of Rule 16 (since it was made in aid of, and under the direct authority of a solemn statute), it has practically.the binding force and effect of a statute. ' If we are to change it, we ought to change its substance and not nullify - it by an indirect collateral attack. There are not in section 2048 any specific penalties attached to a failure •to file an abstract in time. We are empowered to fix the penalties by rule of court and we have fixed them at dismissal of the appeal, or at a continuance till the next term, As suggested above, if we saw fit we might, under the broad power 'to “prescribe the time and manner” within which an abstract of the record should be filed, require it to be filed ten days after the case was set for hearing, instead of thirty days before such setting. So,' while the appellant is given an option to file either a complete transcript of the record, or
It is urged upon us that this identical point was ruled in favor of the right to affirm for the identical reason here urged, by the Kansas City Court of Appeals in the case of Mattenlee v. Mattenlee, 74 S. W. 889. Our examination of that case as it appears reported above shows us that it sustains the position of counsel, but we have been wholly unable to find the Mattenlee case officially reported. Whether its publication in the Southwestern Reporter was due to an error, and was unauthorized, or whether the opinion was later withdrawn, we do not know. We do find that it is not so promulgated as to -be persuasive with us as an authoritative exposition of the law.
We conclude then upon principle and after a most careful examination of the two sections in controversy and of our Rule 16, that while we may have power to make a different rule and to prescribe a different penalty (e. g., even an affirmance of the case), we have not done so; but on the contrary have seen fit to make a dismissal of the appeal, or a continuance of the case at the respondent’s option, the only penalties and we ought not to change the penalty, at least till we have formally changed our rule.
This view was taken in the only case we have been able to find wherein this matter of the meaning in this behalf of sections 2047 and 2048 was considered. This is the ease of Sanders v. Chartrand, 158 Mo. l. c. 364, where it was most appositely said:
“This case is here upon, a complete transcript. Therefore the penalty of an affirmance, provided by section 812, Revised Statutes 1899, does not apply.,' It*226 is only in cases where the complete transcript, or in lieu thereof a certificate of judgment,, is not filed in this court in proper time, that the judgment may be affirmed. A failure to file a proper abstract is punished by the penalties provided by section 813, Revised Statutes 1899, and by the rules referred to, by dismissing the appeal or continuing the ease at the option of the respondent.”
In this distinction touching the legislative intent as regards these two.sections, there is much of logical method; for if an appeal be not completed we could only affirm the judgment below. If per contra, the appeal be completed and the case with jurisdiction over it be lodged here, we can dismiss it, and we have dismissed hundreds of cases of our own motion. If the right to affirm then is to be based upon the view that a “short-form” appeal is not completed within the purview of section 2047 till an abstract be filed, then logically we have been wrong in our Rule 16 and wrong in all these hundreds of cases “dismissed for failure,” for we have dismissed' appeals and therefore cases which were never here and-of which we never had jurisdiction.
As we have seen the almost universal practice has been to dismiss the appeal where a failure to file a printed abstract has occurred. There has been found but one case (Clark v. Fairley, 100 Mo. 236) of affirmance where no abstract whatever was filed, and this case is affirmed without any consideration of the reasons for, or the propriety of, the practice. There are a few cases wherein an affirmance has been adjudged where the abstract which was duly filed has been held insufficient. [Long v. Long, 96 Mo. 180; Jayne v. Wine, 98 Mo. 404; Craig v. Scudder, 98 Mo. 664.] But the weight of authority shows the practice to be to dismiss the appeal; and finding this practice to be in accord with the principle, with the statutes as interpreted in Sanders v. Chartrand, supra, and with
PER CUR’IAM. — This cause coming into Bano from Division Two, because of the pending there of the same question here involved, was reheard in Banc and the foregoing divisional opinion of' Faris, J., was adopted.
Concurrence Opinion
(concurring). — I concur in the views expressed in this opinion. In the case of J. A. Pullar v. St. Louis and San Francisco Railroad Company (now pending in this court) I had joined in an opinion expressing different views, whilst the Pullar case was in Division. The Pullar case rather appealed to the equities of the matter. It was urged that a failure to affirm the judgment might preclude action on the appeal bond, and the defendant was a bankrupt. But there is no substance in this contention. It is true the Springfield Court of Appeals has written a case with contrary views on the right to sue upon the bond, but that case and the error of that opinion, are fully discussed by Ellison, P. J., of the Kansas City Court of Appeals in Arkansas Valley Trust Co. v. Corbin, 179 S. W. 484. Judge Ellison likewise ably discusses the very question we have involved in both this and the Pullar case, i. e., our right to affirm the judgment. He reaches the same conclusion as is reached by our learned brother Faris, and I am constrained to believe that they have reached the proper conclusion. I therefore concur in this opinion.