157 Mo. App. 128 | Mo. Ct. App. | 1911
— The petition in this case consists of five counts, the first claiming $700 on account of a quantity of stone taken from' a quarry under a written contract; the second, on the same contract, alleges another violation as to the terms of it as to opening and-operating the quarry. The third count, on the same contract, avers that when defendants left the quarry, they violated the terms of the contract in that they had not left it in workmanlike condition; the fourth averring that while operating under the contract defendants had destroyed some fence posts; and the ‘fifth, also pleading under the contract, alleges that defendant so carelessly did the work that a large amount of stone was thrown on plaintiff’s field, to his damage.
The answer to the first count admits the making of the contract, denies any breach, avers that defendants had paid everything they were obliged to pay under it, sets out in great detail what was done in connection with it, avers that they had paid plaintiff cash according to the contract mentioned therein, at the agreed price per cubic yard, “for all stone and rock taken out of said quarry under said contract from the 27th day of May, 1904, down to and inclusive of the 23rd day of June, 1904. Wherefore defendants pray judgment for said balance due them as aforesaid in the sum of $102.18, together with interest from June 23, 1904, at 6 per cent per annum, together with costs.” The answer to the second count was a general denial and a plea of performance, a specific denial of the various allegations of that count, denial that plaintiff had suffered any damage by reason of the cause alleged in that count. The answers
The reply was a specific denial of the new matter. There was a trial before the court and jury and a verdict returned in this form:
“We, the jury, find for plaintiff on the first count of his petition in the sum of 335.58 dollars.
J. D. Shumate, Foreman.
“We, the jury, find for plaintiff on the second count of his petition in the sum of........dollars;
J. D. Shumate, Foreman.
“We, the jury, find for plaintiff on the third count of his petition in the sum of........dollars.
J. D. Shumate, Foreman. •
“We, the jury, find for plaintiff on the fourth count of his petition in the sum of........dollars.
J. D. Shumate, Foreman.
“We, the jury, find for plaintiff on the fifth count of his petition in the sum of........dollars.
J. D. Shumate, Foreman.”
The court, receiving the verdict, entered up judgment for plaintiff in the sum of $335.58 and costs. Defendants prayed an appeal to this court, which was granted, and the cause is here on that appeal.
We are precluded from going into an examination of the testimony in this case or the proceedings at the trial and are confined to an examination of the record proper, as we are obliged to hold that no bill of exceptions has been filed in this case within the limit of the extension of time for filing one.
After this case had reached this court, an abstract having been filed, that abstract was attacked by respondent on the ground that it did not show any proper order
It appears that there were two cases pending in the circuit court of Lewis county, one numbered 25:9', in which Joseph Lindsey was the plaintiff and C. F. Nagel was the defendant; the other, the case before us, in which Joseph Lindsey was the plaintiff and O. F. Nagel and W. J. Welsh were the defendants, numbered 272 of the circuit court of that county. It appears that number 259 had never been brought to trial or disposed of, but, so far as the record of the circuit court shows, is still pending in that court. During the March,. 1906, term of that court, an order was duly entered of record in case No. 272, Lindsey v. Nagel and Welsh, in these words: “It is by the court ordered that the time heretofore'given defendants in which to file their bill of exceptions be and is extended to on or before the 28th day of September, 1906.” This entry appears on page 445, record No. 2, of that court. The September term of that court began on Monday, the 17th of September, 1906. There further appears in this same volume 2, of the same record of the court, at page 533, this entry: “Joseph Lindsey, plaintiff, v. C. F. Nagel, defendant. Case No. 259. It appearing to the court that the official stenographer is unable' to file the transcript at the time heretofore set, it is by the court ordered that time heretofore given in the above entitled cause be and the same is hereby extended to on or before the next regular term of this court.” The next record entry introduced in evidence in the hearing
“Joseph Lindsey, Plaintiff,
v. Case No. 272.
O. F. Nagel and William Welsh, Defendants.
In the Circuit Court of Lewis County, Missouri, at Canton, September Term, 1910.
Upon this day come the parties herein, by their attorneys, and the defendants submit to the court their motion heretofore duly filed, asking the court to make and enter an order amending its record in this cause by-causing to be entered nunc pro tunc in the record of this court under the number and title of this cause the order made by this court on September 17,1906, at its September term, 1906, extending the time for filing the bill of exceptions in this cause; and the court, having duly considered said motion and the evidence adduced from the records of this court in support thereof, it appearing to
Exception was duly made by plaintiff to the action of the court, and the question of the authority of the court to make it is properly before us.
It will be observed, in the first place, that there is no date whatever in that order extending the time to the “next regular term of this court.” It is in volume 2 of the records of that court, but at what time it was made, at what term it was made, in no manner appears. The order preceding it, which gave an extension of time, provided that the time for filing the bill of exceptions was extended “to on or before the 28th day of September,-3906.” Whether this succeeding order of extension, which is the one which must be relied on, was made on or before the 28th day of September, does not appear in the transcript of the record of the proceedings before us.
Furthermore, the order, in itself, is not and does not purport to be one extending time to the defendant, who was the one and only one authorized to tender and have filed a bill of exceptions, within which to file any bill of exceptions in the case. It recites that it appearing to the court “that the official stenographer is unable to file' the transcript at the time heretofore set, it is by the court ordered that the time heretofore given in the above entitled cause be and the same is hereby extended to' on or before the next regular term of this court.” The official stenographer is not the one to file a bill of exceptions. Under section 11245, Revised Statutes 1909, he is “to furnish to any person a transcript of all or any part
Some oral evidence was introduced to support this matter, but it is beyond question that that cannot be done; even the recollection of the court itself, of matters that had occurred at a prior term cannot be resorted to or used by him in making nunc pro tunc entries. It is the settled law in this state that such entries can only be made upon the evidence furnished by the papers and files in the cause, or something of record in the minute book or judge’s docket as a basis by -which to amend. [Gamble v. Daugherty, 71 Mo. 599; Coy v. Landers, 146 Mo. App. 413, 125 S. W. 789.] It is the inflexible rule in this state, following the common law rule, that the records of the court must be tried by the record, and it must affirmatively appear, by the record or minutes of the court or clerk, that an order had been made at the time and by some inadvertence not properly entered. We must therefore hold that there is no bill of exceptions before us. We are confined, therefore, to an examination of the errors appearing in the record proper.
As plaintiff recovered nothing on the second, third, fourth and fifth counts of his petition, it is unnecessary to pay any attention to them. There is no judgment based on them. It is true that the verdict returned finds
The brunt of attack made by learned counsel for defendants is directed at the form of the verdict. The main reason given is that the verdict does not pass upon what defendants designate as their counterclaim, which they say is set up against the first count of the petition. The answer to this is twofold. If the form of the verdict is objected to, objection must be made by a motion in arrest of judgment. [Ring v. The Chas. Vogel Paint & Glass Co., 44 Mo. App. 111, l. c. 113; Henderson v. Davis, 71 Mo. App. 1, l. c. 5.] As there is no bill of exceptions, by which alone a motion in arrest can be brought before us for review, we cannot consider the alleged defect in the verdict. Ryan v. Growney, 125 Mo. 474, l. c. 480, 28 S. W. 189, is one of the clearest, among the many decisions, on the necessity of preserving a motion in arrest by bill of exceptions. The importance of 'attacking the form of the verdict in the trial court is manifest; even failure to object to it when returned has been held a waiver of defect of form. The trial court, his attention called to it at the time, can have the jury, not being discharged, correct it. But if that is not done, it must be • attacked by motion in arrest and exception to the action on the motion saved in and by a bill of exceptions. [Sickles Saddlery Co. v. Bullock, 86 Mo. App. 89, l. c. 93.] It is not clear that defendants have set up a counterclaim in their answer to the first count of the petition. Most certainly, if they intended to plead a counterclaim, they have in no manner complied with the statutory requirement. The statute (R. S. 1900', sec. 1806) requires that the answer of the defendant shall contain: “First, a general or specific denial of each ma
In Mangelsdorf Bros. Co. v. Seed Co., 132 Mo. App. 507, also a case in which a counterclaim was pleaded, there was a general verdict for plaintiff. The court at page 512 said: “The verdict being for the full amount demanded by plaintiff in the petition, demonstrates beyond question that the jury found against defendant on the issue of a breach of contract by plaintiff. . . . The jury had to find that plaintiff had broken the contract before it could consider the subject of awarding damages •to defendant, and this it refused to find.”
This cause was on the docket for hearing in this court January 4, 1911; it was submitted on briefs January 11th. The time for filing the abstract was 30 days before January 4, 1911. We hold that the Act of March 13, 1911, does not apply.
On consideration of the record before us, so far as it is open to our review, we find no reversible error. The judgment of the circuit court is affirmed.