183 Mo. 204 | Mo. | 1904
This is an original proceeding in this court to obtain a peremptory writ of mandamus to Judge William L. Jarrott, the judge of the Seventeenth Judicial District of this State, directing and commanding him to sign a bill of exceptions tendered him by the relator, the plaintiff and appellant in the cause of Peter Guinan v. M. S. C. Donnell and Catherine E. and James L. Donnell, wherein a judgment was rendered by the circuit court of Johnson county whereof the respondent was and still is judge.
That Judge Jarrott advised counsel for relator tbat tbe defendants objected to said bill of exceptions because it contained none of tbe evidence or testimony detailed on tbe trial and for tbat reason be must decline to sign and approve tbe same; tbat relator did not include any of tbe testimony taken on tbe trial, for tbe reason tbat be is entitled, if be so elects, to stand and rely in this court upon tbe facts specially found by Judge Jarrott, and conceding said facts to be true for tbe purposes of bis appeal to challenge the. correctness and justice of tbe judgment of Judge Jarrott upon tbe facts so found; that to preserve all tbe evidence would cost relator a large sum of money and relator only seeks to challenge the correctness of said judgment and tbe action of the court on said motions and other actions and rulings of tbe court on tbe pleadings; tbat in bis motion for a new trial be asked a new trial. 1. “Because tbe court erred in overruling plaintiff’s motion to strike out tbe joint answer of Catherine E. Donnell, M. S. C. Donnell and James L. Donnell, and for judgment in favor of plaintiff against said defendants upon tbe pleadings. 5. Because tbe court erred in its conclusions of law upon tbe facts found. 6. Because upon tbe facts found tbe court should have entered judgment in favor of plaintiff upon tbe pleadings and against defendants upon their cross-bill.
“Tbat in and by bis motion in arrest of judgment so filed in said court relator prayed arrest of said judgment:
*213 “1. That because of the pleadings in the cause judgment should have been rendered for plaintiff and against defendants and each of them upon the alleged cross-hill filed by M. S. C. Donnell, Catherine E. Donnell and James L. Donnell.
“2. Because said alleged cross-bill does not state facts sufficient to constitute a cause of action or ground of relief as against plaintiff.
“3. Because the relief granted said defendants under said alleged cross-bill is unsupported by the aver-ments thereof, and improper, erroneous and inequitable thereunder.
“4. Because upon the pleadings and evidence and the findings of fact the judgment should have been for plaintiff.”
The alternative writ issued and commanded Judge Jarrott to allow and sign the bill if he found the recitals therein to be true or show cause why he should not do so.
In due time Judge Jarrott made his return which is as follows, omitting caption:
“Now at this day comes William L. Jarrott, judge of the Seventeenth Judicial District of the State of Missouri, the above-named defendant, and, for a return to the writ of mandamus heretofore issued in the above-entitled cause, says that plaintiff ought not to have his writ of peremptory mandamus for the reasons, that,
“First. The paper presented to this defendant for his approval and signature as a bill of exceptions was not and is not in any sense of the word a true bill of exceptions as appears upon the face of plaintiff’s petition herein and the exhibits filed in connection therewith.
“Second. The paper presented by plaintiff and designated as a bill of exceptions did not contain and does not purport to contain any part of the evidence offered at the trial of the said cause of Guinan v. Donnell.
“Third. The said cause of Guinan v. Donnell was*214 a suit in equity and the judgment of the court therein and its findings of facts therein could not he intelligently reviewed by this court without a consideration of all the evidence offered therein. The rule of this court requires that a bill of exceptions in equity cases should contain the whole evidence to be embodied in the bill of exceptions before it is allowed and signed by the trial judge.
“Fourth. The paper presented as a bill of exceptions simply contained matters which were already of record. The special finding of facts was incorporated in the judgment of the decree of the court and as a part of the record in said cause and it was not necessary to have the same preserved in a bill of exceptions.
“Fifth. The paper presented to this defendant to be signed as a bill of exceptions contained nothing which indicated the action of the trial judge in the trial of said cause except such things as were already a matter of record, and while the paper purported to contain those matters of record it did not contain the whole record thereof. The special finding of facts was incorporated in the judgment and made thereby a part of the record, but the paper presented a.s a bill of exceptions did not contain the whole of the record made in connection with the finding of facts.
‘ ‘ Sixth. The evidence in the said cause of Guinan v. Donnell was voluminous, and the facts established by such evidence should be considered by this court in reviewing the finding, judgment and decree of the trial court in setting aside the sheriff’s deed in question, and this defendant should not be compelled to sign a bill of exceptions in an equity case which does not contain the evidence upon which the decree is based.
“And the defendant having made full answer and return asks to be permitted to go hence with his cost. ’ ’
And thereupon relator moved for judgment, notwithstanding the return, which said motion is in the words following:
“Now comes the relator' and shows to the court*215 here that the return herein filed by the respondent is insufficient in law:
“1. Because in language, substance and effect it is equivocal, evasive, argumentative and uncertain.
“2. Because it neither denies the averments of the alternative writ nor sets or shows any reason why respondent did not and does not sign the bill of except tions tendered him.
“3. Because respondent was and is in duty bound to sign said bill of exceptions or to show good cause why he did not and does not sign the same, and said return wholly fails to show any cause for such refusal.
‘ ‘ 4. Because respondent was in law required either to sign said bill of exceptions described in said alternative writ as having been tendered him, or to point out in' explicit terms in what particular said bill of exceptions was such a bill "as he ought not to be required to sign, all of which he fails to do. •
“5. Because respondent does not in and by said return deny any averment of relator’s petition or of said alternative writ, or point out any averment therein as in any manner incorrect, or set out such a state of facts as show that any averment therein made is untrue.
“6. Because upon the pleadings filed relator’s cause of action stands confessed and he is entitled to his peremptory writ as prayed.
“Wherefore, relator prays that judgment be'rendered in his behalf upon the pleadings, and that a peremptory writ of mandamus issue to respondent as prayed. ’ ’
I.
That mandamus may be resorted to when the circuit court improperly refuses to sign a bill of exceptions is well-settled law. [State ex rel. v. Field, 37 Mo. App. 83; High on Extraordinary Remedies, sec. 204.] Our statute provides (sec. 729, R. S. 1899), “If the
Ordinarily a party is at liberty to save just such exceptions as to him seem necessary, and unquestionably the courts approve the shortening of transcripts as far as practicable. Accordingly, when an appellant desires in a law case to test the correctness of an instruction, rule 6 of this court expressly permits him to
It often occurs that the only complaint is the admission or rejection of certain evidence; in such a case, it would be an unnecessary burden to require the whole evidence to be brought up ; therefore, it is allowable to state in a general way that evidence was admitted pro and con tending to prove or disprove a certain issue and that the appellant offered certain evidence, which over his objection and exception was excluded; or his adversary offered and the court admitted certain evidence over his objection and exception, and then set out the admitted or excluded evidence with a statement of the tendency of the other evidence. [Carter v. Holman, 60 Mo. 502.]
The reason underlying this practice is readily seen in our system of law which requires the court to defer to the finding of a jury when there is substantial evidence to support the verdict; and appellate courts are principally concerned in law cases in seeing that the jury was properly instructed and that only ^.competent legal evidence was submitted to them. But in equity cases appellate courts will review the testimony and are not bound by the findings of the chancellor, either as to ultimate facts or his conclusions of law, and, hence,
Indeed, this court has held in a number of cases that on an appeal in an equity case it would consider evidence which was improperly excluded by the trial court, or reject evidence improperly admitted', when preserved in the bill of exceptions, without reversing the judgment for that reason. [Barrett v. Davis, 104 Mo. 549; Hanna v. South St. Joseph Land Co., 126 Mo. 16; Goodrick v. Harrison, 130 Mo. 269; Davis v. Kline, 96 Mo. 401; Kleimann v. Gieselmann, 114 Mo. 437.]
The mandamus sought in this case is to require the judge of the circuit court to sign a bill of exceptions which contains none of the evidence, «and this court, if it grants the writ, will have nothing before it but the record proper when the case is reached. The contention of the relator is that the evidence is unnecessary, because, he says, we would have the findings of the court as to the facts and law before us. If this is true, he does not need a bill of exceptions, and such a bill as he seeks to have signed would be entirely useless. It would avail him nothing. [Walker v. Stoddard Circuit Judge, 31 Mo. 123.]
But we do not agree with him. The opposite party has obtained rights by this decree. He has a right to have the whole evidence upon which his decree is based before this court before it is reversed. He may be able from that evidence to show that the circuit court’s findings were erroneous, and the decree right notwithstanding such findings. Evidently he convinced the circuit court that the decree in the first instance was wrong, and thereby secured a modification of it. Without the whole¡ evidence we can not determine whether the court was right in the first instance or right in modifying the decree. If we are to pass upon any matter which depends upon the findings and the testimony, clearly we
In Blount v. Spratt, 113 Mo. l. c. 54, this court, speaking of the statute providing that the trial court, if either party require it, shall state in writing its conclusions of facts found separately from the conclusions of law, said: “We do not think it was the intention of the Legislature to abrogate the practice of this court so long ■followed of supervising the findings of the trial courts in equity cases. If the evidence was before us on proper exceptions, we 'Could review it and determine for ourselves the correctness of the findings..” And in the following cases it is ruled we are not bound by the findings of the circuit court: Lins v. Lenhardt, 127 Mo. 281; Dalrymple v. Craig, 149 Mo. 351; Courtney y. Blackwell, 150 Mo. 267, 268; Hoeller v. Haffner, 155 Mo. 597.
There are cases in which we have held that where there were separate findings of fact and law and no exception was taken by either party to such finding of facts, we would treat it as an agreed case or special verdict, but those decisions do not conflict with the rule above announced, that where there is a contest as to facts in an equity case, the court is not hound by the finding of the circuit court.
According to the averments of the alternative writ the defendants assailed the court’s action by timely motions for new trial and in arrest, and the circuit court modified its judgment on the ground that he had omitted a finding which justified the modification. Now in this state of case is it to he held that the circuit court and the defendants are irrevocably hound by the finding of facts and that the circuit court could not modify its views and correct its own errors while it still had jurisdiction of the cause ? We think not; neither do we think that in such a case the defendants are to he held as
The modification was made before plaintiff’s motions were determined and unquestionably he cduld then have amended his motion to include his exceptions to such ruling.
The question here is, shall the judge be required to sign a mere skeleton bill which will not show upon what facts he acted, or are the prevailing parties and the trial court entitled to have the proceedings reviewed from the same point of view that the circuit court occupied? Plaintiff says that notwithstanding the cross-bill he was entitled to a decree in his favor, but as the burden was on him to show the conveyance from M. S. C. Donnell was fraudulent, the evidence may show he failed in doing so; if that be true, he would not be entitled to recover whether the cross-bill stated a good defense or not.
In our opinion the peremptory writ ought not to be awarded; that relator ought to bring up the evidence and all the record if he desires to have the decree of the circuit court reviewed and the circuit court ought to extend the time sufficiently to permit him to do so.
Writ denied.