Stern, Lauer, Shohl & Co. v. Foltz

GANTT, P. J. This is an appeal in an action of attachment commenced and prosecuted to judgment in the circuit court of Vernon county, Missouri. The plaintiffs recovered judgment and the interpleader appealed. The appeal reached this court by the short method of a certificate of judgment and order of appeal. The appellant has filed an abstract of what purports to be the record in the circuit court. Plaintiffs in due time filed their counter-abstract in this court in the shape of a certified — 556 — copy of the bill of exceptions filed in the circuit court, and thereupon filed their motion to strike out and ignore the exceptions brought to this court by interpleader. That our ruling may not be misunderstood we copy the skeleton bill of exceptions filed in the circuit court in order to set out the respective contentions — omitting caption: “Be it remembered that on this 23d day of November, A. D. 1896, during the regular term of the'Yernon county circuit court, the above entitled cause coming on for trial on the interplea before the Honorable D. P. Stratton, with a jury, the following proceedings were had: “The ruling of the court is that the interpleader has the right to open and close the case under the pleadings; to which ruling of the court plaintiffs then and there excepted at the time. The interpleader, to sustain the issues upon his part offered .and introduced the following evidence: (Clerk will here copy the evidence typewritten by the court stenographer and hereto attached.) “The foregoing was all of the evidence offered at the trial. At the close of the evidence, interpleader moved the’ court to give instructions numbered 11 and 13, in words and figures following, to wit: (Clerk will here copy instructions numbered 11 and 13), which request was by the court refused, and to the decision of the court in refusing to give said two instructions and each of them, interpleader then and there at the time excepted. At the request of plaintiffs in the attachment, the court gave instructions numbered 1, 2, 3, 4, 5 and 6, in words and figures as follows, to wit: (Clerk will here copy said instructions numbered 1, 2, 3, 4, 5 and 6). To the giving of said instructions and each of them, interpleader objected, and to the decision of the court in giving each and every one of said instructions interpleader then and there at the time excepted. At his own motion the court gave instruction number 8, in words and figures following, to wit: (Clerk will here copy instruction numbered 8). To the giving of which in — 557 — struction interpleader objected, and to the ruling of the court interpleader then and there at the time excepted.” At the request of the interpleader, the court gave instructions numbered 7, 9 and 10, in words and figures following, to wit: (Clerk will here copy said instructions numbered 7, 9 and 10). “The foregoing were all of the instructions given in the cause. The interpleader then claimed the right to open and close the argument to the jury, which was by the court overruled, and the plaintiff was by the court permitted, over the objection of the interpleader, to open and close the argument to the jury, and to the decision of the court interpleader then and there excepted. The jury returned a verdict in favor of Stern, Lauer, Shohl & Co., plaintiff in the cause. After-wards, and within four days from the trial, and during the continuation of said November term of court, interpleader filed a motion for a new trial in words and figures following, to wit: (Clerk will here copy said motion for a new trial). Said motion coming on for hearing at said term of court, interpleader read in support thereof the affidavits of Charles Ardery, O. W. Sponsler, J. H. Mitchell, F. H. Shackelford, W. R. Rundel, J. J. Foltz, W. T. "Williams, R. A. Marks, and J. J. Swofford, in words and figures following, to wit: (Clerk will here copy said affidavits, which are a part of the files in this case.) “On the hearing of the said motion for a new trial and at the close thereof the court overruled the same and to the decision of the court in overruling said motion for a new trial, interpleader then and there at the time excepted. After-wards, and within four days from the trial interpleader filed his motion in arrest of judgment, in words and figures, following, to wit: (Clerk will here copy said motion in arrest of judgment). Which said motion was taken up at the same term of court and overruled and to the decision of the court in overruling said motion interpleader then and there at the time excepted. — 558 — “Wherefore, interpleader now presents this, his bill of exceptions, and prays that the same may be signed, sealed, filed and made a part of the record. “Which is accordingly done this 10th day of April, 1897. “D. P. Stratton (Seal.) Judge of the Yernon County Circuit Court.” Indorsements on the back as follows: “Eiled, April 19, 1897. “Henry O. Brady, Clerk. “By E. L. Pattorf, D. C.” In the abstract filed by interpleader he has incorporated the depositions of J. J. Eoltz on pages 33 to 64; of L. G. Marks, •on pages 64 to 83; Florence Eoltz, 83 to 91; R. A. Marks, 92 to 105; A. Dennebeim, 106 to 111; Alvin Bauer 201 to 206; Charles Shohl, 206 to 209, “and at page 2 a chattel mortgage from Eoltz to Marks, filed for record, book 55, page 7.” On the foregoing statement we are called upon to say whether the said chattel mortgage and the said depositions constitute a part of the record of this case. The practice of filing a skeleton bill of exceptions in the circuit court has prevailed for many years in this State and •calling therein for deeds, depositions and other exhibits, read in evidence, by referring to them and describing them so •clearly that no mistake can be made as to their identity. [Crawford v. Spencer, 92 Mo. 498; Myers v. Myers, 98 Mo. 262; Tipton v. Renner, 105 Mo. 1; Pitkin v. Shacklett, 106 Mo. 571.] But this rule has never gone to the length of permitting •counsel to call for the oral evidence. On the contrary we have ruled that the oral evidence must be written out and inserted before the bill is signed, and made a part thereof. [State v. Griffin, 98 Mo. 672; Tipton v. Renner, 105 Mo. 1.] In this case, indulging a liberal intendment in favor of the bill, inasmuch as it recites that the typewritten evidence had been written out and was then attached to- the bill, the — 559 — bill would seem to be sufficient to bring up the oral evidence, but we must not be understood as approving this slipshod method of preparing a bill. The only correct way to make a bill is to insert the evidence in the bill, not merely attach it. But the point here is that the interpleader only called for the “evidence typewritten” at that time by the stenographer and that was the oral evidence only and not the various ex~ Mbits offered in evidence which were not then typewritten by the stenographer and never have been even to this time. Indeed, -all that counsel for interpleader claim is that “the typewritten evidence makes calls for identified docu~ ments.” But making calls for -written evidence is not the typewritten evidence of the stenographer and “calls” by the stenographer are not calls by the party whose duty it is to make the bill of exceptions. We tMnk it is too plain for argument that the call* of interpleader for evidence is restricted ex vi termini to the oral evidence taken by the stenographer and subsequently type' written by him and the bill excludes all other evidence. Not having been made a part of the record in the only-way known to the law this court can not consider the chattel mortgage or the depositions and the motion to strike them out must be sustained. The objections to the instructions and motions for new trial and in arrest however are not tenable. They were files of the court and interpleader made proper and definite calls for them. II. We have endeavored to find sufficient left in the record to enable us to pass intelligently upon the -propositions urged by counsel in their brief for the interpleader, but as the interpleader’s case all hinges upon the validity of the chattel mortgage and that mortgage has not been preserved for our inspection and the references t'o it only confuse, we think the ease falls within the rule that he who alleges error must show — 560 — it and with a fragment of the case only left for our consideration we are unwilling to convict the circuit court of. error. The case is one in which fraud is charged, and it often happens that some ruling standing alone appears to be erroneous, but when considered with all the evidence it is harmless. It is certain we can not say that the instructions are erroneous unless we had before us the evidence upon which they were predicated. ■And this court has often ruled that it will .affirm a judgment where the whole evidence shows the verdict was for the right party notwithstanding there was error in some instruction. Nor can we indulge the presumption in this case that the evidence now remaining is all the evidence because the briefs of counsel before us fully advise us that it is only a fragment. Upon the record porper we find no error, and as the exceptions are such that this court ought not to convict the circuit court of error without knowing the whole case tried before it and appellants have neglected to save the evidence in such a way as will enable us to review it, we must indulge the presumption in favor of the circuit court and affirm the judgment and it is so ordered. Burgess, J., concurs; Sherwood, J., absent.