Tipton v. Renner

Black, J. The plaintiffs, Tipton and Gilbert, brought this suit in equity against Renner and others for the purpose of setting aside a sale made by the sheriff of Audrain county under a deed of trust executed by the former owner of the land to secure money borrowed from the school fund. The court set the sale aside, and the defendant appealed. The petition states a good cause of action, and there is nothing in the record proper to call for or justify a reversal. We must, therefore, look to the bill of exceptions, and in doing this the first question is, whether the parol evidence is preserved in a way that we can take any notice of it. The skeleton bill signed by the judge, after calling for the deed of trust, order of the county court and sheriff’s advertisement, is in these words : “The plaintiff then introduced parol testimony as follows: (Here copy testimony taken by shorthand reporter.) To the introduction of which defendant objected on the ground of incompetency, and his objection being overruled by the court he saved his exceptions at the time.” Coming to the defense we have this statement: “Defendant also introduced the following witness who testified as follows: (Here copy [5] testimony taken for defendant by shorthand reporter.) To the introduction of which plaintiff objected on the ground of incompetency and irrelevancy, and, objection being overruled, plaintiff excepted at the time, and this was all the evidence in the cause.” The practice of filing a skeleton bill of exceptions in the circuit court had long prevailed in this state, and is now well established. Thus, it is sufficient to say plaintiff read in evidence a deed, deposition on file or other document, describing the same, so there can be no mistake as to its identity, and concluding, “which is in words and figures as follows,” or with words of like import. This will be sufficient to authorize the clerk to fill out the bill by inserting the document. Crawford v. Spencer, 92 Mo. 498-510 ; Myers v. Myers, 98 Mo. 262-271. But we have held that a judge will not be required to sign a bill of exceptions as a true bill until the oral evidence is written out and inserted in or attached to the bill, and this, too, though the evidence was taken down by an official stenographer. State ex rel. Harber v. Wear, 101 Mo. 414 ; Walker v. Stoddard, 31 Mo. 123; Tobert v. Bartlett, 26 Mo. App. 619; McNeil v. Ins. Co., 30 Mo. App. 306. It is the business of the judge who tried the case to say what evidence was introduced, and he cannot devolve this duty upon the clerk, the reporter or counsel. It is perfectly plain that he cannot sign a bill as a true one until the parol evidence is written out and made a part thereof. He ought not to sign it until this is done, and, if he does sign the bill before such evidence is written out and inserted, the evidence must be disregarded in this court. It is just as important now that this character of evidence should be written out and inserted in the bill before it is signed as it was in days when we had no official reporters; for the evidence as written out by the reporters from their notes taken on the trial, is generally full of mistakes and errors, and incumbered with a mass of immaterial and [6] useless matter, which has no place in the record and should be eliminated before the bill is signed. There is a contention made known to us by affidavits filed in this court, that counsel on both sides agreed that this bill might be signed and filed in the shape in which we find it. That agreement must be and is disregarded, for, as has been said, it was the duty of the judge to say what evidence was produced and admitted or rejected, and this he must do by a proper bill of exceptions. The judgment is affirmed. Barclay, J., dissents; the other judges concur.