Mahopaulos v. Chicago, Rock Island & Pacific Railway Co.

256 Mo. 249 | Mo. | 1914

WALKER, P. J.

— Plaintiff brought suit in the circuit court of Jackson county against defendant for damages for the killing of her husband, by one of defendant’s trains, on the latter’s line of railway near Liberty, Missouri, on tbe first day of May, 1908. A trial before a jury resulted in a verdict for defendant, from which plaintiff appealed. The order granting the appeal was dated September 22, 1909. She thereafter perfected her appeal in the trial court, by filing her bill of exceptions. No further steps were taken by plaintiff until September 19, 1910, when her counsel in vacation offered to file in this court what may be termed a declaration of dismissal, if its character may be so designated from the statements made in regard thereto in affidavits, the paper itself not being before us and not found in the files. The clerk declined to file this paper because there was nothing on file from which it could be determined whether an appeal had been granted. Subsequently this- paper was filed by the clerk as of June 19, 1910.

On the same day plaintiff’s counsel sued out a writ of error, and on September 26, 1910, transmitted same with an uncertified copy of the verdict of the jury and the judgment rendered thereon, with the required docket fee, to the clerk of this court, who filed the same on September 27, 1910'. The timeliness of plaintiff’s action is not in question so far as the writ of error is concerned, if the facts authorized the suing out of the writ, but we are confronted with the more serious problem as to whether the plaintiff, not having complied with section 2048, Revised Statutes 1909, which requires the filing in this court of a short or long form of transcript to perfect an appeal, can by a mere written memorandum, affidavit or other paper not bearing the signature of the clerk and seal- of the trial court showing its genuineness, dismiss an appeal which, although regularly taken and perfected in the lower court, has never been brought within the jurisdiction of this court as required by our procedure.

Appellate proceedings being purely statutory, a party to avail himself of any right thereunder must comply with the requirements of the enabling statute. [Thomas v. Elliott, 215 Mo. 598, 602; State ex rel. v. Broaddus, 216 Mo. 336, 342.] If, therefore, an appeal has been taken and perfected in the trial court, before the appellate court can take cognizance of same for any purpose the statute and rules of the court regulating the transfer and filing here of the records and proceedings in such case must be complied with.

This court in the exercise of its appellate jurisdiction can only act upon the records or properly certified proceedings before it, of subordinate tribunals, and the manner in which such records or proceedings may be submitted for consideration is clearly defined in section 2048, supra, and our Eule 28. In the case at bar, therefore, the court could only be regularly apprised of the fact that an appeal had been taken by the filing here of a properly certified transcript of the proceedings of the trial court or a copy of the judgment and the order granting the appeal. This course is a prerequisite to the dismissal of the appeal, and such dismissal must be entered before a writ of error can properly be sued out.

We take judicial notice of our own records (Chicago Herald Co. v. Bryan, 195 Mo. 590) and up to this time there is nothing either in the files or record entries in regard to this case to show that plaintiff has dismissed her appeal.

While much inclined to review any case upon its merits, where it appears that there has been a substantial compliance with the requirements of orderly procedure, the case at bar does not present these features; on the contrary, plaintiff has failed to comply with the plain provisions of -the statute, and the rule of the court, which would have enabled her to dismiss the appeal and would have authorized a review of this case under the writ of error.

We do not determine, because not warranted in so doing by the facts, what our ruling would have been, if plaintiff had perfected her appeal here and had dismissed same after the suing out of the writ of error and before the defendant filed its motions to affirm the judgment and quash the writ. It will suffice to say that there is nothing before us for review.

From all of the foregoing it follows that the writ of error must be quashed, and it is so ordered.

Brown and Baris, JJ., concur.