State ex rel. Chester, Perryville & Ste. Genevieve Railway Co. v. Turner

BOND, J. stat-»m'it — I. The suit of Béan Callier against the Chester, Perryville & Ste Genevieve Bailway Company for- personal injuries was tried in the circuit court of Dunklin County, of which Bert Turner was clerk, and judgment rendered against the defendant railway company, was by the St. Louis Court of Appeals upon a consideration only of the record proper, and thereupon paid' by the said railroad, which now seeks redress on the clerk’s official bond because of his failure properly to file the bill of exceptions, which negligence and failure of duty, it is alleged, deprived it of its right to have its appeal heard upon its bill of exceptions in the appellate court. The relator further claims that, had said bill of exceptions been properly filed, the said appellate court would have reversed the judgment against it; that the appellate court affirmed the judgment on the record proper, thereby compelling relator to pay the amount of the judgment and costs and suffer the further loss of expenses and attorneys’ fees incurred in perfecting the appeal. In the instant case the relator, in order to support its theory, presented to the trial court and presents to this court, the entire record of tfie Callier case, including the bill of exceptions presented to and rejected by the St. Louis Court of Appeals. Delator also put in evidence the opinion of the St. Louis Court of Appeals in the Callier case, to show that the appellate court held that there was no record entry, minute, notation or memorandum in the records of the circuit court that the bill of exceptions had ever been filed and therefore refused to consider the bill of exceptions as a part of the files of the case, and affirmed the judgment on the record proper. The contention of the relator in this regard is, that if through the fault of the clerk the bill of exceptions was not properly filed and no such record of. the filing thereof made as would present the Callier bill of exceptions to the St. Louis Court of Appeals for consideration, and if reversible error was shown by sneh bill, then the trial court should, and now this court must, hold that the [55] St. Louis Court of Appeals, except for the gross negligence of the clerk would have reversed the judgment (which was affirmed on the record proper) and thereby relator would not have been compelled to pay said judgment. On the other hand, the defendants contend that there was no reversible error shown by the bill of exceptions and that its consideration by the appellate court would not have changed their ruling; but even conceding that it would have made a difference in their decision, at most the case would only have been reversed and remanded, and in the event of another trial Callier would, in all probability, have recovered as large, if not a larger, judgment, and therefore relator was not damaged. The trial court, however, took relator’s view of the case, rendered judgment for the penalty of the bond and awarded execution for $6251.87. The defendants appealed. At the time the appeal was taken Mississippi County was a part of the district of the Springfield Court of Appeals and hence the cause was sent to that court, which reversed the judgment, holding that the bill of exceptions in the Callier case had been legally filed. In conclusion the Springfield Court of Appeals, on account of its decision being in conflict with that of the St. Louis Court of Appeals, certified the cause to this court for final determination. II. This case has reached us in the way provided in the Constitution to cause harmony in the rulings of the two courts of appeal and stands for final decision and' judgment here as if it had been appealed direct to this court from the circuit court of Mississippi County. To justify a recovery in this action it was essential that plaintiff should show actionable negligence of the clerk and consequent damage to it. The burden of proving these two indispensable elements to any judgment against the defendants was cast upon plaintiff by law and was properly assumed in its pleadings. The question, therefore, which dominates the case is: was there any. actionable negligence attributable to the clerk on account [56] of Ms acts and doings in and about tbe bill of exceptions wMch was delivered to bim for filing by plaintiff ? Filing of Exceptions, The facts are undisputed and, in effect, are that after procuring an order of court entered of record permitting it to file a bill of exceptions within a stated time, in vacation, plaintiff prepared such bill of exceptions and transmitted it to tbe office of the clerk where it was received and deposited and a note of acknowledgment sent to plaintiff’s attorney in the form of a signed written statement (which had been inclosed for signature when the bill of exceptions was sent) to the effect that the bill of exceptions was filed within the currency of time extended by the order of record of the judge of the court before its adjournment. The clerk did not, in fact, indorse any writing indicating its filing on the bill of exceptions; be simply kept the bill of exceptions with the papers in the case in bis office. For the reasons given in tbe opinion of the Springfield Court of Appeals, we think wben tbe clerk accepted and deposited with tbe other papers in the cause in bis office, the bill of exceptions delivered to bim to be filed, the act of filing was complete, although be failed to subscribe on the bill itself any written notation of tbe act of filing done by him. Sucb writing would have been full evidence of tbe fact recited by it, but the fact existed independently of that particular method of proving it. It would have been a perfect performance of bis duty if tbe clerk bad made a notation of its filing in writing on tbe bill; but having actually filed it, under tbe conceded acts, tbe omission to make a record of bis act did not destroy tbe act itself, but merely affected tbe method of its proof. [State ex rel. Railroad v. Turner, 177 Mo. App. l. c. 464 et seq., and cases cited.] Damages to File Bill, III. Tbe point is made that there is something in tbe nature of a bill of exceptions wbicb takes it out of tbe rule governing tbe filing of other papers or proceedings in a cause, as to all of wbicb it is not denied that tbe filing might be manifested by tbe proper' physical act, irrespective of any written evidence or indorsements. [57] It is difficult to perceive any intrinsic quality in a bill of exceptions distinguishing it from a pleading, a verdict or process, all of which are parts of the record proper. Yet it is undeniable that these may be filed by the manual act of the clerk without the marking of a written indorsement on any of them. It follows that the bill of exceptions was filed in the legal sense of that term when it was delivered to the defendant clerk, or his deputy, at his office for filing in accordance with the terms of the court’s order providing for its filing in vacation and was received and deposited with the papers in that case, although the bill itself contained no written notation of the act and date of its filing. It necessarily results that no actionable negligence on the part of the defendant clerk was shown and that this suit on his official bond must fail. The similar views of the Springfield Court of Appeals expressed in its decision of this case (177 Mo. App., supra) are approved, and the conflicting views of the St. Louis Court of Appeals in the case of Callier v. Railroad, 158 Mo. App. 249, are disapproved and the judgment of the circuit court of Mississippi County is reversed. Blair, J., concurs; Graves, J., dissents in separate opinion, in which Woodson, J., joins. Cause transferred to Court in Banc. PER CURIAM: — The foregoing opinion of Bond, J., is adopted In Banc as the opinion of the court; Faris, J., concurs in the result; Blair and Williams, JJ., concur; Graves, C. J., dissents in a separate opinion; Walker and Woodson, JJ., dissent, and concur with Graves, C. J.