211 Mo. 411 | Mo. | 1908
Lead Opinion
— Defendant appealed from a judgment of $16,000, rendered June 19, 1906-, at the June term of the Jackson Circuit Court. "Within four days thereafter defendant filed a motion for a new trial and a motion in arrest of judgment. Neither of them was disposed of at the trial term. At the ensuing term, to-wit, the September term, 1906, on the 6th day of October, the motion for a new trial was overruled and
Attending to the dates, it appears the appeal was taken at the September term and. the motion in arrest was not overruled until the December term. If, however, force be given to that part of the record preserved in the bill of exceptions the motion in arrest was overruled at the same time as the motion for a new trial, and exceptions were saved to overruling both.
On the theory there is no final judgment from which an appeal lies until the motion in arrest be overruled, plaintiff files a motion here to dismiss the appeal as premature.
Defendant presents suggestions against that motion duly served on respondent’s counsel. In those suggestions, verified by affidavit, it appears it had. been the custom and practice in the circuit court of Jackson county to hear and determine the motion in arrest at the same time the motion for a new trial is heard and determined unless particular reason exists for separating the hearing and determination of such motions,
It further appears that the transcript was lodged in this court on November 22, 1906, and that when counsel was served with notice of the motion to dismiss the appeal, the time had passed in which a writ of error could be sued out, so that if the appeal be dismissed, defendant, if not without all remedy, at least is placed in a situation of extreme peril in its right to review.
The point made by plaintiff’s learned counsel is novel and, bespeaking careful consideration, it has been deemed best to hand down our views in writing.
Under our practice the precise, technical office of a motion in arrest has become somewhat obscure in certain phases. For example, cases might be cited where matter quite properly covered by a motion in arrest has been considered on appeal when no such motion was in the case but appellant had rested on a motion for a new trial alone. Again, there are cases in which matter proper in arrest of judgment has been considered and determined where there was no bill of exceptions and only the record proper was here; for example, where the petition states no cause of action. The office of a motion in arrest, is said to be to call
Speaking with precision, a motion in arrest is not a motion for a rehearing. If granted, it does not necessarily result in a new trial. If an amendment be allowed, the cause by statutory command proceeds “according to the practice of the court.” [R. S. 1899, sec. 804.] When we consider the limited and humble office of a motion in arrest in the light of the authorities cited, it can be seen to be no essential element in an appeal. It is a not infrequent practice to appeal without one. The most to be said of such motion is that, if one be not filed and passed upon by the trial court, an appellate court will not consider matter of error to which the trial court’s attention could only be called by a motion in arrest. In. the case at bar it is urged there could be no final judgment while the motion in arrest was pending. It is pointed out that the record entries show that while one was filed it was not passed upon until after the court below had lost jurisdiction by the appeal and, therefore (it is argued), the appeal was taken from a judgment not final. [R. S. 1899, sec. 806.] But we are all of the opinion this contention is without substantial merit.
In coming to this conclusion we lay no stress on the overruling of the motion in arrest at a term sub
The belated entry in hand does not purport to be a nunc pro tunc entry to amend the record and we can assign it no known use. It was a nullity. The ease from the view point of the record entries stands, then, as though there was no overruling of the motion in arrest. However, when we come to consider the bill of exceptions we are confronted with another situation. The bill having been settled, signed and filed in due time, became a part of the record of the case and for some purposes must be reckoned with. It shows the motion in arrest was in fact overruled and that defendant saved an exception to that ruling. It is familiar doctrine that such exception could appear nowhere else than in the bill of exceptions. Now, in order to preserve an intelligent exception, the ruling of the court on the motion should appear in the bill, as it does in connection with the exception. [State ex rel. v. Gaither, 77 Mo. 304; In re Pound’s Estate v. Cassity, 91 Mo. App. 424.] When the whole record is considered, including the bill of exceptions, we see preserved properly in the bill a ruling on the motion and an exception to that ruling, but when we turn to the record entries there is (barring the abortive entry of December 20th) an absence of any ruling whatever. If the bill of exceptions contradict the entries in the record proper in particulars of fact, which should only appear in the record proper, then it might very
We hold the judgment, with the motion pending, was a final judgment from which an appeal lies. We put our holding on the ground that it seems consonant with the good sense of the thing. If, for instance, there had been a motion for a new trial pending it would not ■operate per se to stay the issuance of an execution. [Ex parte Craig, 130 Mo. l. c. 595.] By analogy, a motion in arrest should have had no more efficacy in
An appeal being the creature of the statute, the object to be subserved being to get at the very right of the-cause, statutes pertaining to procedure are entitled to a liberal construction and courts should not be prone to plant thorns in the path of appeal. Hence, we are of opinion that defendant should be heard on points raised by its motion for a new trial. It will be sufficient to deny it the right to be heard on questions raised by and peculiar to the motion in arrest because it does not present here a record entry overruling that motion in form. In effect, the situation is the same as if the motion had not seen the light, or was abandoned and out of the 'case.. This is as far as we are willing to go, and it is far enough.'
The motion to dismiss the appeal is, accordingly, overruled.
Concurrence Opinion
concurs in what is said but is also of the opinion that the motion should be overruled for the reason that the bill of exceptions contains sufficient memoranda upon which to base a motion for a nunc pro tunc entry overruling the motion in arrest and that under the facts of this case that privilege should be extended to the appellant before the motion is passed upon.