128 Mo. App. 482 | Mo. Ct. App. | 1907
This appellant, Mary Howard, claiming to be the widow of Laclede J. Howard, deceased, filed on May 12, 1905, in the probate court of the city of St. Louis, her petition under section 106 of the Revised Statutes of 1899, for an appropriation out of the assets of the estate in lieu of the grain, meat and other
1. It is contended in behalf of respondent that we are precluded from reviewing appellant’s exceptions because no term bill of exceptions was signed and filed at the October term, 1906, when the original exceptions were taken. On the contrary it is insisted for appellant that if she filed motions for new trial and in arrest at said October term, and those motions were continued over to the next term and then disposed of, and a bill of exceptions filed at said later term, the carrying over of the two motions for new trial and in arrest, carried over the exceptions from the October term. It is certain the motion in arrest did not have this effect, because such a motion does not reach those exceptions which must be preserved in a bill of exceptions, but goes only to errors, imperfections and deficiencies which appear on the face of the record without being made part of the record by a bill. Therefore we shall inquire concerning the effect on appellant’s exceptions of the continuance of the motion for new trial. The statutes (secs. 727, 728) say that whenever in the progress of the trial of a civil suit, either party shall except to the opinion of the court and write his exception, if the same is true, the court shall sign and allow it; and that such exception may be written and filed at any time within the term of court at which it was taken. Further, that all exceptions taken during the progress of a trial before the same jury, shall be embraced in the same bill of except!ons. Those statutes, if enforced literally, would require all exceptions taken during the progress of a cause to be saved by the filing of a bill of exceptions at the term when they were taken, without regard to Avhether a motion for new trial
“The statute intends that the exceptions shall be written out and filed during the term, while the cause rests in the breast of the court. But where a motion for new trial is made at the close of the term, there may be good reasons for continuing it until the next sue*489 ceeding term for final bearing. And until a final bearing and disposition of tbe motion, tbe whole matter would unquestionably rest in tbe breast of tbe court, and it would be competent for it, in its discretion for good cause, to sustain tbe motion and award a new trial. Until this result is reached, it cannot be said that tbe cause is finally determined. And as tbe statute requires all exceptions to be embraced in tbe same bill, it will be correct if filed at tbe term when tbe matter is disposed of.”
Tbe opinion in Henze v. Railroad, 71 Mo. 636, 644, in adopting tbe rule declared in Riddlesbarger y. McDaniel, adverts to tbe clause of tbe statute requiring all exceptions taken during the trial to be preserved in one bill. The two reasons have a bearing on tbe decision of tbe point in the present case. If tbe bill of exceptions is allowed to be good if filed at tbe term when tbe motion for new trial was overruled, on tbe principle that it is necessary to call tbe trial court’s attention to alleged errors by a motion for new trial and hence tbe necessity of a bill cannot be known until said motion is passed on, then in order to ascertain whether the present case falls within or without tbe principle, we would have to inquire whether tbe rulings .of which appellant complains were of a kind that must be mentioned in a motion for new trial as a condition precedent to having them revieAved on appeal. On tbe other band, if the rule has been prescribed because tbe statute says all exceptions taken during tbe trial of a cause or issue before the same jury, shall be embraced in tbe same bill of exceptions, and the word “trial” as here used, is given a strict technical meaning, tbe present instance would not fall within tbe reason of tbe rule, since there was no trial of tbe cause. Tbe point was again discussed in Walter v. Scofield, 167 Mo. 537, 548, and tbe reasoning-in the Riddlesbarger case adopted. It was held that there is no final judgment until a motion for new trial
The matter is further embarrassed by loose remarks about the functions of the motion for new trial; which, in some opinions is said to be merely to direct the trial court’s attention to errors alleged to have occurred during the actual trial of the issues. [Rigdon v. Ferguson, 172 Mo. 49, 52; 72 S. W. 504; Aultman v. Daggs, 50 Mo. App. 280, 288.] If this is the only purpose of a motion for new trial, such motion would not properly embrace alleged errors in rulings on motions which were not made during the actual trial. There are various motions, the rulings on which may be reviewed without being mentioned in a motion for new trial; for instance: (a) those made after judgment in a cause (Parker v. Waugh, 34 Mo. 340; Bruce v. Vogel, 38 Mo. 100; Parker v. Railroad, 44 Mo. 415; Slagel v. Murdock, 65 Mo. 522), or (b) to strike out an entire pleading, which motion is equivalent to a demurrer (O’Connor v. Koch, 56 Mo. 253), or (c) such as go to the whole cause and aim to dispose of it without trial (Aultman v. Daggs, 50 Mo. App. 280, 288). But rulings on another class of motions cannot be reviewed unless exceptions are saved when the rulings are made and afterwards the court’s attention called to alleged error in its rulings in a motion for new trial. Such are: (a) motions for an allowance of alimony pendente lite (Curtis v. Curtis, 54 Mo. 351; Steele v. Steele, 88 Mo. App. 222) or (b) striking out parts of pleadings (Palmer v. Shenkel, 50 Mo. App. 571; Crow v. Mitchell, 44 Mo. App. 137, 139; Acock v. Acock, 57 Mo. 154) or (c) for a continuance (State v. Mann, 83 Mo. 589) or (d) motions to affirm the judgment of a justice of the peace for want of notice of appeal (Lewis v. Moxey, 9 Mo. App. 97) or (e) motions for change of venue (Wolff v. Ward, 104 Mo. 127, 16 S. W. 161, or (f)
Our attention is called to Smith v. Baer, 166 Mo. 392, 66 S. W. 166, as supporting the respondent’s contention that appellant lost the benefit of her exceptions by filing her bill out of time. But in that case the exceptions which the Supreme Court refused to examine were taken at the October term, 1895; whereas the bill of exceptions was not filed until July 7, 1898, and the motion for new’ trial was not filed until the April term, 1897. Hence there was no motion for new trial carried over from the October term, 1895, to the term when the bill of exceptions was filed. It is clear in such a case, in the absence of a term bill of exceptions, the rulings are not subject to review. It may be that in passing on the error assigned in the refusal of the lower court to grant a jury trial of certain issues, the opinion in Baer v. Smith gives countenance to the contention in the present case. The court remarked in passing on said point, that what had been said regarding the previous exception was applicable; but said, too, the motion for a jury was made too late, as the case had already been referred. It is apparent the assignment of error was held devoid of merit; and after careful thought on the subject, we are of the opinion that in what was said about the necessity of a term bill of exceptions to preserve it, the court did not mean to hold the continuance to a later term of a motion for new trial would not carry over such an exception. Indeed this point was not discussed. In State v. Ware, 69 Mo. 332, no motion for new trial was filed at the term when the exception was taken to the action of the lower court on a motion for change of venue. Hence said action could not be reviewed in a bill of exceptions filed at a subsequent term. The same was true in State v. Taylor, 134 Mo. 109, 136, 35 S. W. 92. The defendant had been denied a certain motion at a term prior to
2. The second contention of respondent is that appellant had no right to dismiss in the circuit court the appeal she had taken from the judgment of the probate court. The argument- is that a proceeding in the probate court is of. the nature of an action in rem in which the judgment is conclusive against every one; wherefore everybody interested in the estate, as creditor, heir, or legatee, is so much concerned in the speedy determination of the matter that it is against public policy to allow a dismissal. It is not denied that ordinarily in other courts, a plaintiff may -dismiss his cause at any time before its submission to court or jury; which, indeed, is the statute law of the State. [R. S. 1899, sec. 639.] But it is argued that probate procedure having come down from the ecclesiastical courts knowsi nothing of nonsuits or dismissals. It is true that the administration of estates was originally vested in the spiritual courts, but it is not true that the procedure of our probate court is identical with, or even similar to the an
The judgment is reversed and the cause remanded.