177 Mo. App. 454 | Mo. Ct. App. | 1914
This is a suit on the official bond of the circuit clerk of Dunklin county, the defendant Turner being the clerk and the other defendants the sureties on his bond. The alleged breach of his bond relates to this clerk’s failure to perform the duties of his office in making a record or written notation showing the filing of the bill of exceptions in a personal injury case, entitled Rean A. Callier v. Chester, Perryville & Ste. Genevieve Railway Company, hereafter designated as the Callier case, and which was tried and judgment rendered against that defendant, relator here, in the court of which defendant Turner was clerk. The said railway company, as relator here, claims damages on the clerk’s bond because the failure of the clerk to properly, file the bill of exceptions and make a record thereof deprived it of the right to have its appeal in the Callier case heard in the appellate court. It claims, of course, that had such case been heard on the whole record, inclusive of the bill of exceptions, the case would have been reversed outright or at least reversed and remanded. As it was, the case was affirmed by the St. Louis Court of Appeals, Callier v. Chester, P. & St. G. R. Co., 158 Mo. App. 249, 138 S. W. 660. The damages are laid at the amount of the judgment and interest the relator was compelled to pay and the necessary costs, expenses and attorneys’ fees incurred and paid in perfecting the appeal, rendered unaviling by having no bill of exceptions before the appellate court.
The first and as we view it the decisive question presented here is whether the bill of exceptions in ques
There is no dispute between the parties as to the facts relative to filing the bill of exceptions in the Callier case. It is admitted by all parties that the bill was properly prepared and signed by the judge and ordered, over his signature, to be filed as part of the record in that case; that such bill was, within the time granted by the court for that purpose, actually delivered by relator to the clerk at and in his office, with request and directions to file the same; and that the clerk then and there received the same and deposited and retained it in his office. He also informed relator by signing and mailing to it a writing, set out in the Callier case, supra, and by telephone that such bill of exceptions was received and filed. The bill of exceptions was used in preparing the abstract of the record of the appeal in the Callier case and was yet in the clerk’s office, its identity unquestioned, when offered in evidence in this case. The relator, on whom devolved the duty of preparing and having signed and
It is evident that the same evidence introduced on the present trial was available when the question of whether or not the bill of exceptions had been filed arose in the St. Louis Court of Appeals in the Callier case and the question now presented to this court is whether such evidence was presented and sufficiently to establish that fact in that court. The defendants disclaim any responsibility for failure, if any there was, in furnishing this available, competent and efficient evidence to that court.
The case of Grubbs v. Cones, 57 Mo. 83, is the leading case on this subject and the question there arose as to the time of filing a mechanic’s lien notice in the clerk’s office on which depended the validity of the lien sought to be enforced. The court declared the law thus: “The filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon. If the clerk commits a clerical error, or makes a mistake in reference to the time at which he received the paper, that will not make any difference. He may indorse upon it the wrong date, or an impossible date, and still the real date of the filing will be the same. Whilst the indorsement made by the clerk will be prima facie evidence of its truth, still it is competent to show that he erred in the matter of date; and if that fact clearly appears, it is within the province of the court to make the correction. The rights of an innocent party will not be sacrificed to a mere mistake, committed by a ministerial officer. ’’ In Baker v. Henry, 63 Mo. 517, the question arose collaterally in the circuit court as to both the fact and time of filing a report of sale of real estate in the probate court, essential to the validity of an administra
These cases are the foundation of a large number of decisions affirming this doctrine and applying it under a variety of circumstances. In Granitoid Co. v. Morschel, 150 Mo. App. 650, 131 S. W. 470, the question again arose as to the filing of a mechanic’s lien claim, except that in this case the question arose in the circuit court on appeal as to the date of filing in a justice’s court, and it was sought to be shown by evidence aliunde the true date of the filing in contradiction of the justice’s transcript. The court held it was proper to do this, saying that in the Grubbs case, supra, the court held “that an endorsement required to be made by the clerk when he receives a paper does not constitute the filing of that paper; that the filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon.” The same principle was applied in a criminal case, State
While we do not find any case in this state, unless it be the Callier case, supra, directly holding that this principle of allowing the fact of filing to be shown by oral evidence when no record evidence exists applies to the filing of a bill of exceptions, yet, in the case of Ferguson v. Thacher, 79 Mo. 511, 514, the court held, overruling Carter v. Prior, 78 Mo. 222, that to show the filing of a bill of exceptions in vacation it is not essential to evidence it by an endorsement of that fact thereon, the court saying: “The clerk’s endorsement upon the bill of exceptions is but his certificate to the fact that it was filed, and his certificate, whether on the bill or elsewhere, if it identifies the bill as the one filed, we hold sufficient.” When we take into consideration that there is no authority of law for clerks of circuit courts making a vacation record (State ex rel. v. Broaddus, 207 Mo. 107, 127, 105 S. W. 629, a dissenting opinion voicing the view of the whole court on this point), this certificate of the filing appearing elsewhere than on the bill, has not the dignity of a record, whatever value it may have as evidence, and the clerk cannot be held liable for failure to make the same. We do not see any reason for applying a different principle to establishing the filing of bills of exceptions than to any other important paper in a case and in other states the principle here discussed has been applied to bills of exceptions. [Preble v. Bates, 40 Fed. 745; Foster v. Hensen, 75 Iowa 291, 39 N. W. 505; Baker v. Milde (Texas), 33 S. W. 152; Eldred v. Malloy, 2 Colo. 20; Young v. Gaut, 69 Ark. 114, 61 S. W. 732; McDaniel v. Columbus Fertilizer, 109 Ga. 284, 34 S. E. 598.]
We readily agree.that there must be some evidence presented to the appellate court showing that a bill of exceptions which such court is asked to re
LooMng at the facts recited in the opinion in the Callier case, 158 Mo. App. 249, 138 S. W. 660, it seems that when it was shown that there was no record entry or file mark on the bill of exceptions showing its filing in the trial court, the defendant, assuming that some such record was necessary, set about procuring
That a clerk acts ministerially and not judicially in filing papers in vacation must be conceded here as
We are reluctant to'hold that, under the facts presented, the bill of exceptions in the Callier case was in fact and in law filed by the clerk, in view of the manifest injustice of now so holding in this suit for damages, after relator has been deprived of its right to be heard on appeal because of the holding of our sister-court that it was not filed. But we are bound by the decisions of the Supreme Court, to which we have referred. These defendants, the clerk and the sureties on his bond, were not parties to the other suit nor are they in any wise in privity with any party to that suit. As to them the question is not res judicata.
The clerk’s representations to relator amounted to no more than that the bill of exceptions had been duly and legally filed; such was the truth and the failure to make the “vacation record entry,” requested by relator, would at most have only furnished evidence more easily produced in the appellate court.
As.this disposes of the case, it is not necessary to go into the other questions presented, such as the proper measure of damages in an action of this kind, or as to whether or not there is reversible error shown by the bill of exceptions, etc., ably argued and briefed by the respective attorneys.
The case is reversed but as this decision is in conflict with that of the St. Louis Court of Appeals is Callier v. Railway Company, supra, the same will be certified to the Supreme Court for final determination.