Lieffring v. Birt
204 S.W.2d 935
Mo.
1947
Check Treatment

FRANK LIEFFRING, Appellant, v. CHARLES BIRT

No. 40374

Division One

October 13, 1947

204 S.W. (2d) 935

crimes” for other purposes than shedding light, if any, upon the intent of the defendant at the time of the shooting.

The statement and argument complained of was in reply to prior argument of appellant‘s counsel about giving appellant and his “family” a chance and not to single them out from other people of the community. The reply was to the effect that the defense was relying upon the jury having sympathy for the wife and family of appellant. Counsel then proceeded, “Was he thinking of any children in the home of Andrew Berger when he pointed the gun at the door of the Berger home out of the taxicab?” The trial court refused to declare a mistrial or to instruct the jury to disregard the argument. The statement objected to was not legitimate argument in reply, as in the case of

, but was retaliatory and based upon evidence admitted for and limited to another purpose. The argument was improper, but not prejudicial. The control of argument of counsel is largely within the discretion of the trial court. Reversible error and abuse of the trial court‘s discretion, under the facts here, is not shown.
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Finding no reversible error in the record, the judgment is affirmed. Bradley and Van Osdol, CC., concur.

PER CURIAM:—The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.

Alcid Bowers and Sterling P. Reynolds for appellant.

John J. Robison for respondent.

BRADLEY, C.—Action to recover $3,500 actual and $3,500 punitive damages for an alleged illegal arrest and imprisonment. A motion to dismiss was sustained; the cause was dismissed and plaintiff appealed to the Kansas City Court of Appeals. That court reversed the judgment of dismissal and remanded the cause.

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After remand the cause was tried and the verdict of the jury was for defendant. Motion for a new trial was filed, but overruled, and plaintiff again appealed to the Kansas City City Court of Appeals. The notice of appeal recited that the appeal was “from the verdict, judgments, decisions and decrees entered on this action.” The court of appeals, on its own motion, dismissed the appeal because the transcript did not contain a copy of the judgment [

], but certified the cause to the supreme court because the opinion was in conflict with an opinion of the St. Louis Court of Appeals in
. The St. Louis Court of Appeals held, in the Whealen case, that absence of a copy of the judgment in a transcript could only raise a procedural question, while the Kansas City Court of Appeals held that such was jurisdictional.

The St. Louis Court of Appeals certified the Whealen case to the supreme court because the opinion was in conflict with the opinion by the Kansas City Court of Appeals in

, in which case the ruling on the question was the same as in the present case. The ruling here in the Whealen case was that such question was procedural and not jurisdictional.
. After ruling the question this court said [202 S. W. (2d) l. c. 893]:

“Under Rule 1.03 permission is given and any appellate court in Missouri is vested with a wide discretion to require or not to require the clerk of the trial court to send up any papers, documents or exhibits in any cause then pending on appeal in such appellate court. Such discretion the appellate court may exercise to send for any portion of the transcript inadvertently omitted, and thus prevent a miscarriage of justice. It may in the exercise of such discretion refuse and decline to make any requirement whatever of the clerk of the trial court. The appellate court may, in its discretion, refuse to permit counsel to supply the deficiency in the transcript out of time as did the Court of Appeals in Bales v. Jefferson City Lines, supra. However, if the appellate court having exercised its discretion to call upon the clerk of the trial court to supply a deficiency in the transcript, and such omission having been supplied by such clerk, or supplied by counsel with the court‘s permission, then has before it a ‘full transcript‘, the appellate court then has sufficient upon which to proceed upon the merits of the appeal.”

It appears in the file of the present case (in a paper filed here by appellant) that no judgment was actually entered of record on the verdict. Sec. 116 of the code (Laws 1943, p. 388) provides that “the judgment shall be entered as of the day of the verdict.” It is common knowledge that such simple judgments as would be the judgment in this case are entered by the clerks of the trial courts without looking to counsel for preparation of form. The failure to enter the judgment in the trial court was likely a mere oversight of the clerk. It will be noted from the above, quoted excerpt from the

case that the appellate court may exercise its discretion “to send for any portion of the transcript inadvertently omitted and thus prevent a miscarriage of justice.” Appellate courts should not abuse that discretion. An order of the appellate court to the clerk of the trial court to enter the judgment and send up certified copy, in such situations as here, would result in the entry of the judgment “as of the day of the verdict” which the statute requires the clerk to enter, and the certified copy sent to the appellate court would complete the transcript in accordance with the actual situation. The time in which to appeal is reckoned from the date of the judgment as fixed by Sec. 116 of the code.
. And we might say that in such situations as here, where the judgment to be entered is simple, we can perceive of no reason why the formality of a nunc pro tunc order should be invoked. A judgment is the judicial act of the court and its entry upon the record is the ministerial act of the clerk (30 Am. Jur., p. 824, Sec. 10), and in legal contemplation, under Sec. 116, the judgment is rendered upon the verdict when the verdict is returned, and its validity is not affected by the delay of the clerk in entering it on the court record, or by an omission altogether to record it in pursuance of statutory direction. A judgment derives its force from the judicial act of the court in its rendition and not from the ministerial act of the clerk in entering it upon the record. 30 Am. Jur., p. 856, Sec. 71.

Our civil code governs “the procedure in the supreme court, court of appeals, circuit courts and common pleas courts.” Sec. 2, Laws 1943, p. 357. And this section also provides that the code shall be construed to secure, among other things, the just determination of every action. “Only in exceptional circumstances could an action be justly disposed of by dismissing a meritorious appeal. The spirit of the new civil code undoubtedly is to dispose of appealed causes on their merits unless delinquency in the procedural steps to appeal have been too grave to condone.”

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Sec. 6, Amendment of 1884, old Constitution, provided that in a case certified to the supreme court by a court of appeals “the supreme court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process.” But the new Constitution, Sec. 10, Art. V, provides that “the supreme court may finally determine all causes coming to it from any court of appeals, whether by certification, transfer or certiorari, the same as an original appeal” (italics ours).

The case of

, was certified to the supreme court by the Springfield Court of Appeals because of the importance of a procedural question. The supreme court ruled the question and transferred the cause back to the court of appeals.
. And the present cause should be transferred back to the Kansas City Court of Appeals. It is so ordered. Dalton and Van Osdol, CC., concur.

PER CURIAM:—The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.