State ex rel. Wabash Railroad v. Ryan, 115 Mo. App. 414

State ex rel. Wabash Railroad v. Ryan

115 Mo. App. 414 | Mo. Ct. App. | 1905

GOODE, J.

(after stating the facts). — None of the , allegations of fact contained in the return of the honorable circuit judge to the writ of mandamus has been traversed, and we shall accept them all as true. An appeal of the case of the Diamond Match Company against the Wabash Railroad Company was taken March 10, 1905, during the February term of that year. There is no record entry showing that the railroad company was granted time beyond that term to present and file a bill of exceptions; and it is on this fact principally, that the court refused the two bills of exceptions tendered by it and refused to allow the second appeal which was prayed on July 7th, subsequent to the entry on that day of the nunc pro tunc judgment as of date January 18th. It is insisted by counsel for the railroad company that it was entitled to a nunc pro tunc entry showing that in point of fact the court on March 10th allowed time beyond the term to file a bill of exceptions. But this was a matter for the finding of the court below on competent evidence. The court found there was no minute or memorandum on the court’s docket, the clerk’s minute book or the files in the case, to support a nunc pro tunc entry of that kind. There is nothing in the pleadings in the present case to controvert this finding; and if it is true, the court ruled correctly in refusing the nunc pm tunc entry. [Ross v. Railroad, 141 Mo. 390, 38 S. W. 926, 42 S. W. 957.]

Another fact to be seized is that when the appeal was allowed on March 10th, a motion in arrest of judgment was still pending; for the return to the alternative writ states that on March 8, 1905, the court overruled the defendant’s motion for new trial; but the motion in arrest was not passed on before the appeal was *420allowed or subsequently. Now, then, we have two outstanding facts tending to show the first appeal was premature, namely; the pendency of the motion in arrest and the fact that when the appeal was allowed there was no entry of record of a judgment in the case. The latter fact is the only one insisted on as. invalidating the original appeal; but we deem the pend-ency of the motion in arrest decisive and its effect more certain. Hence, we shall rest our decision on it. In truth the argument in the briefs has gone principally to what we consider an immaterial próposition; the right of the railroad company to nunc pro tunc entries extending its time to file bill of exceptions and allowing it to file motions for new trial and in arrest after the entry on June 14th of judgment nunc pro tunc as of January 18th in favor of the Diamond Match Company. These questions may all be put aside; for in view of the fact that no valid appeal was granted, they may be included in the record when a valid appeal is taken, and, if relevant to the final result in the cause, may be reviewed. Of course an appeal will not lie from the merits of a case until there is a final judgment. [Silvery v. Sumner, 51 Mo. 199.] A final judgment had been rendered, but not entered; so as to this feature, if we were to consider it, the essential question would be: Does an appeal lie from a judgment which has been rendered but not spread on the records? Perhaps the answer to this question would depend somewhat on whether there was a sufficient minute of the judgment. The pleadings in this proceeding show nothing in regard to what was contained in the minute of the judgment rendered January 18th; but the alternative writ says there were minutes on the papers and the clerk’s docket.

Stepping aside fora moment from the pleadings and record before us, and looking at the bill of exceptions tendered by the railroad company, and which is presented here as an exhibit, we find it recites an applica*421tion by the Diamond Match Company for a nunc pro time entry as of January 18th and that the recited application avers, as a basis for the entry, that the following minute appears on the files of the original case:

“Jan. 18. Judgt. of Jan. 4, 1905, vacated and set aside & Judgt. entered as of this date for $1280, with interest at six per cent from Aug. 7,1901.”

Also that a minute to the same effect and of the same date appears in the minute book of the clerk of the circuit court. Respondent’s return in the present case states that the court’s list of decisions rendered January 18th, showed judgment was rendered for the Diamond Match Company against the Wabash Railroad Company on that date. Those memoranda are not now before us for an adjudication as to whether they were sufficient to authorize a mino pro tunc entry or not; but we refer to them to elucidate, in some measure, the circuit court’s rulings. There is reason for the opinion that a minute as full as the one above quoted would he a sufficient entry of judgment to uphold an appeal, even 'though the judgment was not spread in full on the records. But the proposition is a dubious one, and the case of State v. Popple, 53 Mo. 321, appears to be opposed to it. [See, also, Logan v. Harris, 90 N. C. 7.] We pass the question over as there is no present need to decide it. Our opinion is that the pendency of the motion in arrest stood in the way of the appeal taken March 10th, for the reason that there had been no final disposition of the cause. It has been adjudged in this State, and elsewhere, that an appeal does not lie while a motion for new trial is pending. [State ex rel. v. Smith, 104 Mo. 418, 16 S. W. 415.] We can think of no reason why a like rule should not prevail when a motion in arrest is pending; for if the trial court should sustain the motion, thereby arresting the judgment, there would he no final judgment against the defendant from which it could appeal. [Garesche v. Emerson, 31 Mo. 258; Hood v. State, 44 Ala. 81.] But *422there are cases against this opinion. [Young v. State, 6 Ohio 435; McIntyre v. Pope, 38 Ill. 514.] It is the practice in this State to enter judgment immediately after the verdict is returned, without waiting for motions for new trial and in arrest; which usually are filed and disposed of subsequent to the rendition of judgment, though technically due before. In view of this practice, the reason fails which is assigned in cases supra, for holding an appeal will lie while a motion in arrest is pending; to-wit, that rendering judgment, in effect, overrules the motion.

Orders correcting a record nunc pro tunc are subject to review and are presented to an appellate court by a bill of exceptions. [Elliott, App. Prac. secs. 214, 215; Hansbrough v. Fudge, 80 Mo. 307; Baker v. R. R., 122 Mo. 533, 26 S. W. 20; Ross v. R. R., 141 Mo. 390, 38 S. W. 926, 42 S. W. 957.] We have no doubt that the defendant would have been entitled to its bill of exceptions and its appeal from rulings made subsequent to the appeal of March lOtb, even if the appeal had been effective. But it was not, because of the undisposed of motion in arrest of judgment. Hence, the appeal may be dismissed by the railroad company and the motion in arrest can be passed on then and, if overruled, the relator may appeal and bring the entire record up by bill of exceptions. This decision makes it unnecessary and improper to order by mandamus the allowance of a second appeal or the signing and filing of a bill, as prayed by relator. We think the right way to dispose of the matter is for the railroad company to present here a certified copy of the judgment and the order allowing the appeal and dismiss the appeal; whereupon the circuit court may rule on the motion in arrest and, if the ruling is adverse to the railroad company, it may appeal and the cause will be before this court for review of all the proceedings in it. Therefore a peremptory writ of mandamus will be denied.

All concur.