Ryan v. Growney

Sherwood, J. It ought to be regarded as settled in this state, that without a bill of exceptions there can be no such thing as a motion for a new trial or a motion in arrest. The preservation of these motions is the special and exclusive office of the bill of exceptions. They can be preserved noivhere else; that is sole repository of such motions. No recital by the clerk in the record proper will have any such preservative effect. Nichols v. Stevens, 123 Mo. 96. This holds good of all motions made for finding of facts as provided by statute, the only exception being, that motions which constitute pleadings are regarded as a part of the record proper just like any other pleading. [481] State ex rel. v. Court of Appeals, 87 Mo. 374; Wilson v. Railroad, 108 Mo. loc. cit. 602. Under the old practice all motions not constituting part of the record proper, had to be incorporated into, i. e., copied in, the bill of exceptions, but under the new statutory regime the old rule has so far relaxed that “provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court,” this will be sufficient. State v. Griffin, 98 Mo. 672. And not only must there be a bill of exceptions and the motions desired to be preserved, preserved as aforesaid, but on the denial of the motion for a new trial or in arrest, exception must be saved, and this must be preserved in the bill of exceptions, by being recited therein. "Without such exception thus taken and saved, the so-called bill becomes “as sounding brass or a tinkling cymbal.” In such case, in contemplation of law, there is no such motion. State v. McDonald, 85 Mo. 539; State v. Gilmore, 110 Mo. 1. But here there is not even a bill of exceptions and of course, it is worse than useless to talk about the motion for a new trial, or the motion for a finding of facts. In the circumstances of this case they can not be noticed although defendant relies on them to a large extent, as the attention of the court was not called to such matters and an opportunity afforded to correct the errors complained of. See last' case cited, and-authorities there collated. Also see McIrvine v. Thompson, 81 Mo. 647; Wilson v. Haxby, 76 Mo. 345; Danforth v. Railroad, 123 Mo. 196, and cases cited. But notwithstanding the foregoing observations, it is nevertheless true that for material error apparent [482] on the record this court will reverse the judgment although no bill of exceptions be filed. Ransom v. Cobb, 67 Mo. 375; Showles v. Freeman, 81 Mo. 540; Mills v. Thomson, 61 Mo. 415; Nordmanser v. Hitchcock, 40 Mo. 178; Railroad v. Mahoney, 42 Mo. 467; Sweet v. Maupin, 65 Mo. 65. The only excuse given by plaintiff for deceiving defendant, as stated in the answer, was that alleged in the reply, “that the defendant got this plaintiff into an intoxicated condition and while in that condition, the plaintiff was induced to, and did, make the affidavit mentioned in the answer, not knowing or %mderstanding the nature thereof.” These allegations of the reply are tantamount to the tacit admission that but for such intoxication, thus induced by defendant, plaintiff would have been “at himself,” and knowing his minority would not have made the false affidavit. No other conclusion can legitimately be drawn from these allegations of the reply. These .allegations were evidently made to avoid the estopping effect of the false affidavit. But the lower court expressly found that such a state of intoxication did not exist. So that we have a false affidavit made by plaintiff while duly sober, and which was calculated to deceive and did deceive defendant as to plaintiff’s age, and was made for that express purpose. The case then stands here before this court with the false affidavit and the false excuse therefor, exposed and Masoned forth on the record; but still the lower court without finding any fraud on defendant’s part nor any on plaintiff’s part, entered a decree for the latter. Now, if it be true that in the circumstances plaintiff was estopped to do as he did, and the record shows this, then there exists error patent of record, and consequently the decree entered can not stand. [483] Was the plaintiff estopped? This question will now be considered in the light of authorities to be cited. Touching this topic an eminent jurist says: “Eor in cases where one of two innocent persons must suffer a loss, and a fortiori in cases where one has misled the other, he who is the cause or occasion of that confidence by which the loss has been caused or occasioned ought to bear it. Indeed, cases of this sort are viewed with so much disfavor by courts of equity, that neither infancy nor coverture will constitute any excuse for the party guilty of the concealment or misrepresentation; for neither infants nor femes covert are privileged to practice deceptions or cheats on other innocent persons.” 1 Sto. Eq. Jur. [13 Ed.], sec. 385. Pomeroy says: “Fraud, however, will prevent the disability of infancy from being made available in equity. If an infant procures an agreement to be made through false and fraudulent representations that he is of age, a court of equity will enforce his liability as though he were adult.” 2 Pom. Eq. Jur. [2 Ed.], sec. 945. Another author of recognized merit says: ‘ ‘Neither coverture nor infancy will excuse fraud. An infant who is privy to, or practices a fraud, or commits a tort, shall be bound in the same manner as if he had been an adult. Thus, where an infant fraudulently represents himself to be of age and thus obtains credit for goods, he is liable in equity though not in law. So, where a married woman represented herself to be a widow and borrowed a sum of money, she was bound by her representation. On the principle that a person shall not set up his own iniquity as a defense, any more than as a cause of action. Whenever an infant who has arrived at years of discretion, by direct participation, or by silence when he was called upon to [484] speak, has entrapped a party, ignorant of his title or of his minority, into purchasing his property from another, or who in selling real estate, represents himself to be of full age, and induces the party to buy on the strength of that representation, can not disaffirm his contract on the ground of infancy.” 2 Herman on Estoppel, and Res Judicata, sec. 1119. In Schmitheimer v. Eiseman, 7 Bush, 298, an affidavit was made by an infant as to her majority and the purchaser was induced to accept her deed and part with his money, relying on the truthfulness of the facts thus stated. The court said that “the chancellor could give no relief to appellant without making himself a party to her iniquitous and fraudulent conduct and we think he properly dismissed her petition, wherefore we affirm his judgment.” See, also, Ferguson v. Bobo, 54 Miss. 121; Adams v. Fite, 3 Baxter (Tenn.), 69; Carpenter v. Carpenter, 10 C. E. Green, 194; Whittington v. Wright, 9 Ga. 23; Patterson v. Lawrence, 90 Ill. 174. Guided by these authorities we hold that plaintiff is estopped by his fraudulent conduct and representations from calling on a court of equity to aid him in repudiating a contract brought about by such means, and the facts on which this conclusion is based, being patent of record, we reverse the decree entered below, and remand the cause with directions to the lower court to dismiss the petition. All concur.