234 Mo. 16 | Mo. | 1911
— For four years, William Woods was clerk of the county court of Wayne county. By law, he was entitled to retain from the fees of his. office $1250 per year for his salary, and $900 per year for deputy hire. The present suit is an action upon his bond for fees and moneys collected and not reported in his several settlements with the county court. The delinquency of each year of his term is the subject of a separate count in the petition. The cause was sent to a referee, who in his report made a finding of facts and stated his conclusions of law, and in which he recommended that judgment, for the full pen
By answer, the defendant Woods (1) denies generally the matters pleaded, except that he was clerk of the county court and executed the bond sued upon, and (2) full settlement and acquittance by the county court. In this latter portion of the answer is con-' tained an averment that the county court had directed said Woods to do things which he was not required as clerk to. do, and that these matters entered into the settlement made.
The reply by specific allegations put in issue all matters set up in the answer.
Other defendants answered by way of a general denial.
Defendants also claim to have filed a motion to dismiss and abate the action because the county court had made no order of record directing the prosecuting attorney to institute the proceeding.
This sufficiently outlines the case. Other matters of record and evidence can best be stated and discussed along with the points made.
I. In natural order, the motion to dismiss should be first considered.
Plaintiff urges that the record fails to show the filing of this motion, and for that reason it is not here for consideration. This contention is correct. The abstract of the record proper nowhere shows the filing of such a motion. Under the heading, “Bill of Exceptions ’ ’ we find such a motion, as well as a recital of the action of the court thereon, and defendant’s ex
II. Plaintiff further contends that the abstract of record fails to show that defendants filed any exceptions to the report of the referee. In one sense this is true, and in another it is not true. Going to the abstract of the record proper we find that the entry made by the clerk at the time the exceptions were filed has not been abstracted. But going further into the abstract of the record proper, we find the entry of the judgment in the case, and in that judgment, we find this recital: “Now on this 14th day of February, 1908, this cause coming on to be heard upon the defendant’s exceptions to the referee’s report as heretofore filed, and the court having seen and heard the same and being fully advised in the premises all and singular doth overrule the same.”
This recital from the record proper shows that exceptions had been filed. It further shows that the exceptions were considered by the court, and after consideration were overruled. It is true that this record entry does not show that the exceptions were filed
III. 'When a case has been referred, the hearing before the court is upon the report of the referee, and the exceptions filed thereto. These exceptions must specifically point out the rulings which are challenged. [Smith v. Haley, 41 Mo. App. 611.] If they do not inform the court in what respect the report of the referee was not warranted by the law or the evidence, they will be disregarded. [Wiggins Ferry Co. v. Railroad, 73 Mo. l. c. 419; Singer Mfg. Co. v. Givens, 35 Mo. App. 602; Dallas v. Brown, 60 Mo. App. 493; Cahill v. McCornish, 74 Mo. App. 609.] And if no exception be saved to the ruling of the court upon these written exceptions to the referee’s report they are not here for review. [Wentzville Tobacco Co. v. Walker, 123 Mo. l. c. 671, 672.]
The Walker case, supra, refers to State ex rel. v. Burkhartt, 83 Mo. 430. In- the Burkhartt cases exceptions were filed and overruled, and presumably exceptions taken to the action of the court in so overruling such exceptions. But counsel failed to file a motion. for a new trial calling the trial court’s attention to its alleged error in this respect. In discussing that situation of the case, this court said: “The errors complained of are such as must be preserved by bill of exceptions. These are duly preserved in the bill of exceptions, but there is nothing in the bill of exceptions to show that a motion for new trial was filed or overruled by the court, nor is there any such a motion found in the transcript. Before this court can review the alleged errors, the attention of the trial court must be called thereto by a motion for new trial, and that and the ruling thereon must be incorporated in the bill of exceptions. [State v. Marshall, 36 Mo. 400; Long v. Towl, 41 Mo. 398; Collins v. Saunders, 46 Mo. 389; and Rotchford v. Creamer, 65 Mo. 49.] The judgment of the circuit court in each of these cases is affirmed.”
We have gone thus far in outlining the law to the end that we might discuss the serious point in this record. The bill of exceptions in this case preserves the exceptions and the ruling thereon. It shows that the defendants excepted to the ruling upon their exceptions. We also find a motion for new trial properly preserved, and an exception to the action of the court in its ruling thereon. The trouble, however, lies in the motion itself. This motion nowhere charges the court with error in overruling the' exceptions to the report of the referee. It contains some eight grounds, but not one of-them mentions the áction of the court
■ Nowhere is it charged in the motion that the court erred in overruling defendants’ exceptions to the referee’s report. "What we have quoted from the motion for new trial, could as well have appeared in. a motion for new trial where no exceptions had been filed, as in a case where exceptions had been filed. Tet, if no exceptions had been filed, the motion would be unavailing. The question therefore is, can we consider the exceptions to the referee’s report, where the motion for new trial fails to assign the overruling of such exceptions as error. We think not. When we consider that in referee cases the cause is heard nisi upon the report and the exceptions filed thereto, and further consider that the litigant must not only except to the action of the trial court in overruling his exceptions to the referee’s report, but must further by his motion for new trial, call the court’s attention to the alleged error in overruling such exception, it is clear that there is nothing for review in this case, except the record proper, and this is without error.
In filing their motion for new trial counsel seem to have overlooked the fact that the trial in the court, nisi, was on the report and the exceptions thereto. In reference cases the referee is required to make and report his rulings both on the evidence and the law, and the errors which he makes are called to the attention of the trial court by specific exceptions to be filed within four days. The errors of the trial court are called to the attention of this court through his ruling upon these exceptions. To get a ruling from this court upon the action of the trial court it is necessary, (1) to preserve ah exception to the action of the trial