103 Mo. App. 662 | Mo. Ct. App. | 1903
(after stating the facts as above).—
“The court instructs the jury that if they find in favor of plaintiff, they will assess the damages at the reasonable value of the merchandise turned over by said Williams to defendant, not exceeding the sum of $850, and that the plaintiff claims the sum of $571.24 as such reasonable value. ’ ’
Whereupon the jury returned a majority verdict in. favor of plaintiff, assessing his damages at the sum of $571.24. On the day following, defendant, through its
The statute provides that all exceptions taken during the trial of a cause before the same jury shall be embraced in the same bill of exceptions. R. S. 1899, sec. 728. In an early case, it was held that the law now allowed but one bill of exceptions, and the matters excepted to during the trial are to be noted at the time, and after the trial is over and the motion for a new trial, or other appropriate motion has been overruled, a bill of exceptions is to be prepared, stating the matters excepted to in the order in which they occurred during the trial. Dougherty v. Whitehead, 31 Mo. 255. This court, in a recent decision construing the aboye section, has held that it was a mandatory provision, and contemplated that the final bill of exceptions should be embraced in one document. Atchison v. Railroad, 94 Mo. App. 572. The last cited case was intended, however, by this court to be- confined to bills of exception taken after the appeal had been allowed, and was not meant to dispense with term bills of exception. The approved practice, if the action of the trial court is desired to be .reviewed by the appellate court, is to preserve the exception by proper bill at the term at which the ruling the subject of exception, was had, and incorporate such term bills in the final bill of exceptions, ultimately taken as a step for appeal of the cause, which was the course adopted in this proceeding, and which has received the sanction of the Supreme Court. Smith v. Baer, 166 Mo. 392.
“At Brunswick, in said district, on tbe twenty-fourth day of June, A. D. 1902, before me, A.- J. Crovatt, referee of said court in bankruptcy, tbe petition of H. U. Williams that be be adjudged a bankrupt within-tbe true intent and meaning of tbe acts' of Congress relating, to*670 bankruptcy, having been heard and duly considered, the said H. U. Williams is. hereby declared and . adjudged bankrupt accordingly.
“A. J. Crovatt,
‘ ‘ Referee in B ankruptcy. ’ ’
“I, A.'J. Crovatt, one of the referees in bankruptcy of said court, do hereby certify that the foregoing is a true and accurate copy of the original order of adjudication in the case of H. U. Williams, bankrupt, original of file in my office.
“Dated at Brunswick, Georgia, March 23,1903.
“A. J. Crovatt,
“Referee in Bankruptcy.’’
Also a copy of the bond of .plaintiff as such trustee and its approval by the referee in bankruptcy, and a certificate of authentication of both by the same referee. These documents were admitted in evidence without objection thereto by defendant, and respondent now insists that the latter must be held to have waived the contention now sought to be pressed, that there was no proof that Williams was legally adjudicated a bankrupt in the absence of evidence in the record that the judge was absent from the district, or the division of the district in which the petition was pending. The bankrupt act provides that, “if the judge is absent from the district, or the division of the "district in. which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the cáse to the referee. ’ ’ The preceding subdivision declares, “If, on the last day within which pleadings may be filed, none, are filed by the bankrupt or any of his. creditors, the judge shall, on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition.” Chap. 4, sec. 18, e and f. . It is manifest from this language of these sub-.
“If the jury find in favor of plaintiff they will render a verdict for such sum as will equal the value of the property, money or both, given by Williams to Pinckard in partial settlement of his debt to defendant. ’ ’
The petition alleged the transfer of merchandise of the value stated, as a preference unlawful under the acts of Congress, and prayed judgment for its value. The instruction was broader than the pleading upon which it was based, and therefore fatally erroneous. Wolfe v. Supreme Lodge, 160 Mo. 675; Friedman v. Pulitzer, etc., Co., 102 Mo. App. 683.
In view of the conclusions reached and above expressed, it is not deemed essential to indulge in considering other propositions presented by appellant, which, even if worthy of determination, are not likely to be repeated upon a retrial. For errors above noted, the judgment is reversed and the cause remanded.