123 Mo. 662 | Mo. | 1894
— This is an action on a bond for $6,000, with collateral condition, executed by defendants to plaintiff.
The bond was conditioned for the faithful performance of the duties of secretary and treasurer of the plaintiff company, by Mr. W. W. Walker, the principal defendant.
The amended petition set up a number of breaches of the bond, consisting of a variety of alleged irregularities on the part of Mr. Walker, and furnished some forty items of specific charges of moneys received by
The petition also alleged that defendant Walker was indebted for many more items, which could not then be particularly mentioned, owing to his irregular mode of keeping the accounts of the company.
The final separate answer of the defendant sureties admitted the execution of the bond, etc., but denied all liability on account thereof, and especially all the charges of misconduct of their principal.
They also alleged that they were bound by the terms of their bond to answer for the conduct of Mr. W. W. Walker, only during his term as secretary and treasurer of plaintiff, which expired on the second Monday of January, 1885; and that during that period no misapplication of any funds by him took place.
The principal defendant stood upon the original answer, denying all the material charges of the petition and claiming a judgment against plaintiff for $500 bn account of various items of money paid by him to the use of the company, at its instance, and for which he had not received credit.
On motion of defendants the cause was sent to a referee for trial of all the issues.
Many witnesses were examined, and the accounts stated by them bearing on various points of difference cover more than twenty pages of the printed matter on this appeal.
The referee reported to the court recommending a judgment for plaintiff for $1,209.69, though it had claimed a larger sum in the course of the hearing, and in the petition.
Defendants filed exceptions to the report; and the sureties then filed, by leave, the separate answer above noted.
The court sustained the exceptions and sent, the
More evidence was then submitted by plaintiff; and in due time the referee filed a second report, finding for plaintiff in the sum of $1,026.34.
To the second report the defendants excepted. Their exceptions were ultimately sustained, and the case was again referred to the same referee, who made a third report in favor of plaintiff in the sum of 1,060.63.
Defendants filed exceptions to the third report. Upon consideration thereof, the trial court sustained them, and rendered judgment for the defendants.
From that judgment plaintiff appealed, after an unavailing motion for a new trial.
It will not be necessary to go into the merits of the case for reasons which will s'oon appear.
We shall take up the points assigned as errors in the order in which counsel present them.
1. It is urged that the court erred in refusing to strike out, on motion,' part of the original answer of defendants, and the amended answer of the sureties.
Both of those rulings ' on the pleadings took place several terms before that at which the final bill of exceptions, or even the final report of the referee, was filed.
Rulings on motions directed at the pleadings must be excepted to at the term when made, if it is intended to have them reviewed. Unless that is done, they can not be made the ¡subject óf review on appeal merely by being incorporated in a bill of exceptions filed at a later term in the proceedings.
This rule is settled in this state and requires no discussion. R. S. 1889, sec. 2168; State v. Ware (1879), 69 Mo. 332; Keen v. Schnedler (1887), 92 Mo. 525.
There are several answers to this claim; some of a technical character, but one, at least, of firmer substance.
a. The defendants insist that this court can not properly go into the accounts, with a view to overhaul the referee’s finding or the action of the court on the facts, because the record here is not the record on which the court and referee acted on the circuit.
It appears from the report of the referee and the testimony accompanying the report, that plaintiff ofered in evidence, on the hearing before the referee, the ledger, cash book and stamp book of the plaintiff, which had been kept by W. W. Walker while in plaintiff’s employ as secretary and treasurer.
These books form material parts of the evidence. The experts refer to their contents frequently, and it is plain that, without them, no trier of the case could forma safe judgment as to the merits of plaintiff’s claim. Yet they have not been made part of the record now submitted. In their absence we are bound to assume that the trial court found in them support for the conclusion it promulgated.
It devolves on him ascribing error to the trial court to show it affirmatively. In the absence of such showing we should always presume that the judicial action of our brother on the circuit was right.
b. The case was most obviously one for a reference, with or without the consent of the parties. It involved a long and complicated accounting; and a trial by jury was not demandable as a matter of right. R. S. 1889, sec. 2138.
The constitutionality of the section cited has been
In causes wherein the court may lawfully direct a compulsory reference, it may likewise act upon the evidence reported by the referee, and find therefrom different conclusions of fact from those reported by the referee.
This should now be taken as settled law under the rulings in Caruth, etc. Co. v. Wolter (1886), 91 Mo. 484, and State ex rel. v. Hurlstone (1887), 92 Mo. 327, without re-opening the question they adjudge.
It was hence entirely competent for the trial court, in the case at bar, to set aside the finding of the referee in favor of plaintiff, and then to find for the defendants upon the evidence reported by the referee.
Whether the court commited error in so doing, we can not investigate (assuming that we have the power) in the state of the record already described.
c. The most important ruling of which plaintiff complains is the action of the trial court in sustaining defendants’ exceptions, filed to the last report of the referee. Those exceptions were in writing as required by section 2154 (R. S. 1889), and partook of the nature of a pleading or motion in the cause.
Yet plaintiff saved no exception to the ruling of the court thereon, though it afterwards moved for a new trial, asjwas held necessary in State ex rel v. Burckhartt (1885), 83 Mo. 430.
We think an exception was necessary to preserve that ruling for an appellate court, since exceptions to a referee’s report are, in substance, no different in nature from motions for a review or correction of the report.
It has been often held that an exception is essential to save the ruling on a motion for new trial. Berry v. Smith (1873), 54 Mo. 148; Taylor v. Switzer (1892), 110 Mo. 410. A ruling on exceptions to a
As the case now stands, it remains for us but to
affirm the judgment.