134 Mo. App. 430 | Mo. Ct. App. | 1908
Lead Opinion
This is an original proceeding by mandamus. It is sought to compel the Hon. Daniel G. Taylor, one of the judges of the circuit court of the city of St. Louis, to either sign or certify why be refuses to sign the bill of exceptions in a certain case wherein the relator William S. Winsor is defendant and
“I, the undersigned, Daniel G-. Taylor, Judge of the Circuit Court, City of St. Louis, Division No. 2, and before whom the above-styled cause was tried, do certify that defendant’s counsel presented to me the attached hill of exceptions in open court on December 23, 1907, and that on said date, and at the same time, plaintiff’s counsel presented his objections to said bill of exceptions, which objections axe hereto attached and marked ‘B;’ that thereupon I extended the time for filing defendant’s bill of exceptions until January 10, 1908, by a proper order: that immediately after taking possession of defendant’s bill of exceptions and plaintiff’s objections thereto, I delivered the same to the court reporter with directions to examine the stenographic notes relating to this cause in the light of the changes in the original transcript, and plaintiff’s objections, and to report to me.
“The report of the court reporter, which is marked ‘C’ was delivered to me by him on or before the 6th day of January, 1908, and by me considered. Upon such consideration, I concluded I could not sign the bill of exceptions as presented for the reason that it did not correctly set out the facts. I took no further action on this matter and gave it no further consideration until January 14, 1908, when counsel for both parties pursuant to notice sent by me, appeared in court, when defendant’s counsel urged the court to sign the bill of exceptions as presented, as of either the date when the same was delivered to the court, or as of some day prior to January 10, 1908, or to extend the time for filing by nunc pro timo entry, so as to cover a date of signing and filing of the bill of exceptions; this the court refused to do. From the last-mentioned date to this the court has had the matter of signing and filing of said bill of exceptions under daily consideration, aided by counsel, with a view of determin
(Signed.) “Daniel G. Taylor, Judge. (Seal).”
It appears'from the respondent’s return and in fact stands conceded in the case that relator’s counsel wholly failed to call upon Judge Taylor at any time after the proposed bill of exceptions was placed in his possession on December 23d. He made no inquiry concerning the same until notified by Judge Taylor on January 14th, four days after the time for filing the bill had expired, that he had not signed it. On that date, having received notice from Judge Taylor, the relator’s counsel appeared in court and proffered to concede all of the objections of opposing counsel provided Judge Taylor would sign the bill. The time for filing the bill having expired, Judge Taylor declined to affix his signature thereto for the reason he had no further jurisdiction in the premises. Relator’s counsel also insisted that the court should extend the time for filing by an order nunc pro tuno, or that the judge should sign the same and permit it to be filed nunc pro tunc. This request was also declined. It appears Judge Taylor determined the bill, as then proposed, to be untrue on January 6, 1908, and declined to affix his signature thereto for that reason. The judge recites in his return that he failed to indorse on the bill that it was untrue, etc., for the reason relator’s counsel wholly failed to call upon him or to indicate his desire thereabout. He avers he was ever willing to reject the bill as untrue by indorsing the fact, in accordance with the statute thereon, but omitted to do so for the reason relator’s counsel did not call upon him thereabout and he did not know what further action the relator desired to take in the premises. It is averred that-Judge Taylor did not know what action
The only question in the case worthy of consideration is whether or not Judge Taylor is required by statute to either sign the bill, or, having determined it to be untrue, indorse the cause thereon for not signing it and return it to relator’s counsel without a suggestion from him to do so and without being advised what course the relator desired. To properly determine this question, our statutes touching such matters should be considered and construed in the light of the practice which obtains with the courts and members of the bar in settling, obtaining the signature to, and filing bills of exceptions. There are several sections of our statute pointing out the course to be pursued with respect to obtaining the true narrative of the cause tried on the circuit, in the bill of exceptions. These statutes are
“Seo. 728. Exceptions to be filed, when. — Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as' the court may, by an order of record allow, which may be extended by the court or judge in vacation for good cause shown, or within the time the parties to the suit in which such bill of exceptions is proposed to be filed, or their attorneys, may thereafter in writing agree upon, which said agreement shall be filed by the clerk in sáid suit and copied into the transcript of record when sent to the Supreme Court or Courts of Appeals. All exceptions taken during the trial of a cause or issued before the same jury shall be embraced in the same bill of exceptions.
“Seo. 729. Duty of Judge refusing to sign bill.— If the judge refuse to sign such bill on the ground that it is' untrue, he shall certify thereon under his hand the cause of such refusal.
“Seo. 730. Exceptions, when signed by bystanders. —If the judge refuse to sign any bill of exceptions, such bill may be signed by three bystanders who are respectable inhabitants of the State, and the court, or judge thereof in vacation, shall permit every such bill, if the same be true, to be filed in court or in the clerk’s office, if ordered to be filed in vacation, within the time specified in such order of the court.
“Seo. 732. Exceptions to be part of record taken signed. — Every bill signed by the judge or by the bystanders and filed in court, or with the clerk thereof in vacation, as in this chapter provided, shall form a part of the record of the cause in which it is filed.
“Seo. 733. Proceedings taken court refuses the filing of exceptions.— When the judge shall refuse to permit any bill of exceptions signed by the bystanders to be filed, and shall have certified that it is untrue,,either
“Sec. 734. Disposition of affidavits. — -Such affidavits shall be taken and deposited in the clerk’s office within five days after the return of such bill of exceptions so certified to be untrue to the party presenting the same, and on appeal or writ of error, copies of such affidavits shall be annexed to and form a part of the record of the cause.
“Sec. 735. Disposition of exceptions in appellate court. — Every court to which an appeal or writ of error shall be taken shall admit, as part of the record of the cause, every bill of exceptions taken therein, upon its appearing satisfactorily to such court that the truth of the case is fairly stated in such bill, that the same was taken accordingly to law, and that the court refused to permit such bill to be filed.
“Seo. 736. Truth of bill, how determined. — The truth of every such bill shall be tried by the affidavits required by this article to be taken and filed in the clerk’s office.”
It appears from the statutes above quoted that there are two ways in which the bill of exceptions may be properly authenticated and become a part of the record in the case. First, by the signature of the judge and its filing in proper time. Second, the bill by bystanders is authorized when the judge 'determines the bill proposed by counsel is untrue and refuses to sign it for that cause, indorsing such cause upon the bill. It appears that after the judge has rejected the bill as untrue, he may still refuse to permit the filing of a bystanders’ bill if he considers such bill untrue as well. Upon his refusal to permit the bystanders’ bill to be filed, the exceptor is authorized to procure affidavits concerning its integrity, which the adverse party may combat if he sees fit by counter affidavits, and thus create an issue touching the integrity of the contents of the bill, which issue is to be determined on the affidavits submitted
“As this statutory mode of bringing up the facts of a case is unusual and is liable to embarrass the appellate court by the necessity imposed upon it of deciding the truth of the bill, we take the opportunity of saying that it ought to be avoided if possible. To that end, the judge who presides at the trial would do well to state briefly wherein the bill is untrue, if he objects to it upon that ground, and to give the parties such assistance in making it up as his impartiality and his notes of the testimony eminently qualify and enable him to do. The law, however, does not require that he write the bill, or change one presented to him — only that he shall certify the cause of his refusal to sign it. A liberal construction of this requirement, we think, would make it his duty to point out in a general' way, but with such particularity as to make it understood, in what the untruthfulness consists.”
When the statute last mentioned is liberally construed to the end of avoiding the procedure involved in the bystanders’ bill, it appears it' does not affix the duty upon the trial judge to act by rejecting the bill as untrue until there has been some conference between the judge and counsel for the exceptor thereabout. The statute reads: “If the judge refuse to sign such bill on the ground that it is untrue, he shall certify thereon under his hand the cause of such refusal.” The employment of the word “refuse” essentially implies that some suggestion should be made to the judge to sign the bill,' or do otherwise. Nothing appears in the case under advisement to the effect that any conference was had by counsel for exceptor with the judge. No suggestions were made as to what relator’s counsel desired if the bill were found to be untrue. The proposed bill, with the objections thereto and certain concessions to the objections, but with other objections still standing against its integrity, was submitted to the judge
The majority of the court are of the opinion that-Judge Taylor acted in accordance with policy of our law in waiting to hear from relator’s counsel as to what course he desired to pursue in the matter. For the judge to have refused to sign the bill and indorse thereon his cause therefor, would have entailed the additional trouble and embarrassment of procuring and presenting the bill vouched for by bystanders. The judge had the right to assume that relator’s counsel would call upon him within the time for conference thereabout, at which time counsel might have been willing to concede, as he seemed to be on January 14th
It therefore appears that if relator’s rights were forfeited in the matter at all, the forfeiture occurred on account of the inattention of counsel rather than from default of the judge, for whether the judge signed or rejected the bill, it would not have been filed in time.
The writ of mandamus is not a writ of right. It should only go upon the exercise of a sound legal discretion in accordance with the established rules of law. The exercise of that degree of discretion forbids the-mandatory order in this case. The peremptory writ is denied.
Dissenting Opinion
This is an original proceeding by mandamus, the purpose of which is to compel Hon. Daniel G. Taylor, one of the judges of the circuit court of the city of St. Louis, either to sign or certify why he refuses to sign a bill of exceptions in a cause wherein the relator, William S. Winsor, is defendant and Edward C. C. Reicel is plaintiff. The facts upon which relator relies for the relief prayed for, succinctly stated, are that on April 24, 1907, Edward O. C. Reicel recovered a judgment against William S. Winsor (relator) in the sum of $1,149, in the division of the circuit court of the city of St. Louis over which Hon. Daniel Taylor presides. On April 27, 1907, Winsor filed his motion for a new trial, which Judge Taylor overruled on September 30, 1907. During the same term, on October 5, 1907, Winsor filed his affidavit for an appeal to the St. Louis Court of Appeals, which appeal was allowed on the same day and ten days allowed appellant to file his appeal bond and sixty days to file his bill of exceptions. On the tenth day of the same month, Winsor filed his appeal bond, which was approved by the court. By orders duly made the time for filing the bill of exceptions was extended to and included January 10, 1908. After obtaining possession of the transcript of the evidence made by the official stenographer of the court from his stenographic notes, Winsor’s attorney made a number of alterations therein, by erasures and insertions, and then submitted his bill of exceptions to opposing counsel, who, on a separate sheet noted his objections to the bill of exceptions as prepared by Winsor’s attorney. Winsor’s attorney conceded a number of objections noted by opposing counsel, but not all of them, and on December 23, 1907, handed the bill of exceptions as prepared by him, the objections thereto by opposing counsel and his concessions, to Judge Taylor for examination. As. to what trans
“I, the undersigned, Daniel Gr. Taylor, Judge of the Circuit Court, City of St. Louis, Division No. 2, and before whom the above-styled cause was tried, do certify that defendant’s counsel presented to me the attached Bill of Exceptions in open court on December 23, 1907, and that on said date, and at the same time, plaintiff’s counsel presented his objections to said hill of exceptions, which objections are hereto attached and marked ‘B’; that thereupon I extended the time for filing defendant’s bill of exceptions until January 10, 1908, by a proper order; that immediately after taking possession of defendant’s bill of exceptions and plaintiff’s objections thereto, I delivered the same to the court reporter with 'directions to examine the stenographic notes relating to this cause in the light of the changes in the original transcript, and plaintiff’s objections, and to report to me.
“The report of the court reporter, which is marked ‘C’ was delivered to me by him on or before the 6th day of January, 1908, and by me considered. Upon such consideration I concluded I could not sign the bill of exceptions as presented for the reason that it did not correctly set out the facts. I took no further action on this matter and gave it no further consideration until January 14, 1908, when counsel for both parties, pursuant to notice sent by me, appeared in court, when defendant’s counsel urged the court to sign his bill of exceptions as presented, as of either the date when the same was delivered to the court or as of some day prior to January 10, 1908, or to extend the time for filing by nunc pro tuno entry, so as to cover a date of signing and filing of the bill of exceptions; this the court refused to do. From the last-mentioned date to this, the court has had the matter of signing and filing of said bill of exceptioris under daily consideration, aided by counsel, with a view of determining a proper course to*446 pursue. This certificate is made in order that facts not otherwise of record may be considered by any other court called upon to review the action of this court in the premises, and is signed in chambers on this 18th day of January, 1908.
“(Signed.) Daniel G-. Taylok, (Seal).
“Judge.”
Winsor’s attorney made no'inquiry of Judge Taylor about the bill of exceptions until he was notified by the judge, on January 14th, that he had not signed it. He was then in a humor to concede all the exceptions of the opposing counsel to get the bill signed.. But the time for signing and filing the bill had expired and the judge had no further jurisdiction over the cause and could not rightfully sign the bill, nor would it have become a part of the record if it had been signed and filed, neither did the court have power to make a nunc pro tuno order extending the time in which to file the bill, for the reason there was no memorandum jin writing to authorize the entry of the nunc pro tunc order. For the reason relator’s attorney did not call upon Judge Taylor about the bill of exceptions to inquire about it before the time for filing the same had expired, it is contended by respondent that his failure to get his bill of exceptions perfected in time is due to his own negligence. It may, for the purpose of the case, be conceded that relator’s attorney was negligent in failing to make inquiry of Judge Taylor and to learn whether he had signed, or refused to sign, the bill of exceptions before the expiration of time allowed for filing the same. Section 729 (Ann. St. Mo. 1906) provided: “If the judge refuse to sign such bill on the ground that it is untrue, he shall certify thereon under his hand the cause of such refusal.” The next succeeding section provides for the signing of the bill of exceptions by bystanders in case the judge refuses to sign the bill on the ground that it is untrue. It has been held that where the judge refuses to sign a bill of
Circuit Court Rule No. 37, pleaded and relied on by relator, provides that bills of exceptions shall be served on the adverse party, who shall within three days make objections (if any) on a separate piece of paper, and serve the same on the excepting party. If the excepting party does not agree to such alterations then the proposed bill and alterations shall be submitted to and settled by the court. Under this rule, as well as under the statute, it was respondent’s duty, after ascertaining wherein the bill was untrue, from the notes furnished . by the court reporter, to have called counsel to his aid, if necessary, and have settled and signed the bill, or failing to settle it, the judge should have certified wherein he found it untrue in time to have afforded the relator an opportunity to prove the bill by bystanders and- file it on or before January 10th. By neglecting to do either, respondent deprived relator of his constitutional right of appeal, unless the relief prayed for in the petition is granted. But respondent
