Budde v. United States Incandescent Lamp Co.

REYNOLDS, P. J. Preliminary to a consideration of the case on its merits, it is necessary to pass upon a question • which arose over the abstract prepared and filed by appellant. After the abstract was filed, respondent in due time filed objections to it, claiming that it did not appear that the testimony was set out in full; then, that it appeared in the abstract that instructions numbered 1, 2 and 3 had been given at the instance of plaintiff, and that defendant had excepted to the giving of these three instructions; — 155 — that instructions numbered from 1 to 12, both inclusive, appeared in the abstract as having been given at the instance of defendant; that instruction numbered 13 appeared in the abstract as having been given by the court of its own motion, and that defendant had excepted to the giving of it; whereas, as claimed by respondent, the thirteen instructions given were set out together in the bill of exceptions on file and were numbered seriatim from one to thirteen inclusive, without any notation showing at whose instance any were given, and no exception whatever appeared in the bill of exceptions as having been taken to the action of the court in giving either or any of these instructions. Counsel for appellant thereupon asked that the cause be passed that it might be given an opportunity to apply to the trial court for a correction of the bill of exceptions. Respondent making no objection, time was granted appellant to make the application in that court accordingly. This application for correction of the bill of exceptions was made in the trial court, and there heard and overruled, from which action defendant appealed, that appeal being case No. 15089. By agreement of counsel’ we advanced the latter appeal and heard it along with the'appeal in No. 14120, the latter being on the case on its merits. It is therefore necessary to first consider the appeal from the action of the trial court in refusing to allow the amendment to the bill of exceptions. If that action is correct, the propriety of the action of the court in giving any of the instructions, is not open to us, it neither appearing in the bill of exceptions at. whose instance the several instructions were given, nor that exception was saved to the giving of any. It is well to state here, that at the argument of the case, counsel for respondent, having his attention called to Rule 11 of our court, did not press the objection that the bill of exceptions failed to state, in — 156 — so many words, that it “contained all the evidence introduced in the case.” In the circuit court the motion for the correction of the bill of exceptions mmc pro time, which motion was verified by one of the counsel in the cause, was read in evidence. It is averred in this motion that the bill of exceptions, as it now exists, is not a true and correct transcript of the proceedings had in the trial of the cause in the court, in that it failed to show at whose instance the several instructions were given, and in that it appears by the files in the case that when the judge of the court was considering the defendant’s motion for a new trial, and before the court overruled that motion, plaintiff and defendant filed with the court their respective arguments in favor of and against the granting of a new trial in the cause, and that it appears by those briefs that instruction No. 1 was given in the cause at the instance of plaintiff, and that plaintiff admitted by implication in his brief, that instruction No. 1 was so given, and contended that it was properly given and that defendant had objected to it as error, and that both parties admitted thereby, in this cause, “by implication, the fact that the said instruction was objected to and an exception was saved to the giving thereof by the defendant at the time the same was given; and that said instructions Nos. 2 and 3 were likewise given at the instance of plaintiff and over the objection and exception of defendant, made and duly saved at the time said instructions were given;” that these briefs ever since, the motion for a new trial was under consideration, have remained among the files of the court “and constitute a part of the papers or files of said cause, and .are papers and files in this cause which furnish a proper basis for the mmc pro tunc entries sought herein.” Other averments, not here deemed material, are in the affidavit of counsel. — 157 — At the hearing of the motion, defendant also introduced the original instructions numbered 1 to 13, both inclusive, each marked by the judge of the court “Given.” It appeared that all but one (the 13th) are typewritten and on separate sheets of legal cap, No. 13 being printed and being the stereotyped instruction as to the number of jurors necessary to concur in a verdict. It appeared that instructions 1, 2 and 3 were without heading and in purple ink, while Nos. 4 to 12, both inclusive, are on another brand of paper, typewritten in black, and each headed, ‘ ‘ Instructions to the Jury.” The thirteen instructions given are all attached together and the package indorsed by the clerk of the court as filed April 29, 1913. The briefs of counsel on the motion for new trial were also offered and received in evidence, neither brief, however, is marked as having been filed, although they appear to have been left among the papers in the case. The motion for new trial in the main case was read in evidence, which, among other things, assigns as a ground that the court erred in “the instructions given to the jnry of its own motion,” and that the court erred “in the instructions given to the jury at the instance of plaintiff.” The brief signed by counsel for plaintiff appears to be in answer to a brief by appellant on the latter’s motion for a new trial, and defends instruction marked No. 1 as correct, and concludes with the statement that defendant had asked and the court had given at its request, “a whole mass of instructions in this case,” and states that “even if there were any omissions in plaintiff’s instruction, w’hich there was not, yet it would have to be read in connection with those given for defendant.” Defendant also introduced in evidence the memorandum of its counsel in support of the motion for new trial on the main case, which memorandum was with the files in the case, and particularly criticizes the first instruction — 158 — given, and claims that counsel for plaintiff had impliedly admitted in his oral argument that this instruction No. 1 is erroneous. Defendant’s counsel in offering these briefs and memorandum in evidence stated-in open court that the briefs had been submitted to the court for its consideration when the motion for new trial was under consideration by the court. These briefs were objected to by counsel for plaintiff on the ground that briefs were no part of the files or memoranda in a case, not, however, denying that the briefs had been submitted to the court, as it is said. This objection was overruled, plaintiff ' excepting. Defendant thereupon offered in evidence the original bill of exceptions, reading so much of .it as it deemed relevant, namely, “Thereupon the court gave and read to the jury the following instructions, to-wit:” The abstract now before us then proceeds: “Here follow said thirteen instructions set out in said abstract -in case No. 14,120', without any statement as to on whose behalf or on whose motion said instructions, or any of them, were’offered. Said bill of exceptions does not recite any objection or exception -on the part of the defendant to the giving of either of said thirteen instructions.” During the hearing on the motion counsel for defendant asked counsel for plaintiff in open court' whether he admitted that he, as counsel for plaintiff, offered instructions numbered 1, 2 and 3, at the trial of the case. Counsel further asked that counsel for plaintiff if he denied that he had so offered said instructions. That counsel was also asked by counsel for plaintiff if he admitted that counsel for defendant had offered instructions 4 to 12 inclusive. That counsel was further asked in open court by counsel for defendant if he denied that counsel for defendant had offered instructions 4 to 12, both inclusive, and further asked that counsel if he denied the coiirt giving instruction 13 of its own motion, and — 159 — further asked that counsel if he denied that the court gave instruction No. 13 if its own motion. To all these requests counsel for plaintiff said that he “had nothing to say about them.” At the end of the hearing, as before noted, the court entered an order to the effect that “the court having heard and duly considered the defendant’s verified motion heretofore filed and submitted herein; to correct and amend defendant’s bill of exceptions in this cause, by nunc pro .tunc entries thereof, as of date October 3, 1913, and. being now fully advised of and concerning the same, doth order, that said motion be, and the same is hereby overruled.” To this counsel for defendant duly excepted. In the view we take of this effort to correct the original bill of exceptions by nunc pro tunc entries, we think it is entirely immaterial to determine at whose instance any of the instructions were., asked or at whose instance they were given. It stands admitted that no exceptions appear in the bill of exceptions to the giving of any of these instructions.. That being so, it is entirely immaterial who asked them — at whose instance they were given. But learned counsel for appellant undertakes to overcome this difficulty by showing by the matter set out in the briefs, which it appears wére submitted to the court in considering the motion for a new trial on the main case, that on the part of defendant this instruction No. 1 was attacked and that instruction defended by counsel for respondent. It is also claimed that as it appears by the motion for new trial, filed in the main case, that the action of the court in giving instructions of its own motion and in giving the instructions at the instance of plaintiff was challenged, this is sufficient matter of record to warrant an entry showing which instructions were given at the instance of plaintiff, and which by the court of its own motion, and that .exception' had — 160 — been duly saved by defendant to this action of the court. While the court admitted all of the testimony offered by defendant, it evidently did not consider it of sufficient force to warrant the amendment of the bill. A very strong case and a leading one in our State on the right of the court to make nunc pro tunc amendments is that of Missouri, Kansas & Eastern Railway Co. v. Holschlag, 144 Mo. 253, 45 S. W. 1101. That case passed npon the admissibility, or, more properly, the effect, of a notation of a date of filing an opinion in the case made on that written opinion by the clerk. There it is held that such opinion was not of the record proper of the case, and could not be considered as sufficient to justify any nunc pro tuno entry, the point being as to whether the motion for new trial had been filed in due time. There have been many decisions by the Supreme .Court and by the Appellate Courts of our State as to the power of the trial court to make amendments nunc pro time. Thus in Coy v. Landers, 146 Mo. App. 413, l. c. 416 to 426, 125 S. W. 789, in a full discussion of the power of the trial courts to make such amendments, it is held that they can be made only upon evidence furnished by the papers and files in the cause or something of record, or in the minnte book or judge’s docket, as a basis by which to amend. Probably the last decided case is by our own court in Thaler v. Niedermeyer, 185 Mo. App. 250, 170 S. W. 383. In that ease the entry on the records of the court by the clerk showed the fact of instructions given by the court, and it was noted that to this action of the court in giving the instructions, plaintiff then and there duly excepted. Reviewing many décisions on the subject) our court concludes (1. c. 255) with the statement: “.But the settled rule, reiterated in these and other cases, recognizes that such nunc pro tunc entries — 161 — may properly be made from evidence furnished by the clerk’s entries in the court’s records, made at the time in question. Heré the clerk’s .entry, in the record of the very judgment or order itself, recites the very fact which plaintiff seeks to have entered in the bill of exceptions, mmc pro. tunc.” After referring to the argument made that no duty rested upon the clerk to make such an entry in the record, our court concludes that “there can be no doubt that the record entry here in question is an entry of record in the cause, and solemnly records the happening of the very thing which plaintiff now seeks to have the bill of exceptions show,” and we concluded that that was sufficient to allow the amendment. We have no such proposition here; no entry of record as to any exceptions saved to the giving of these instructions by anybody; no papers of the files proper from which it can be determined at whose instance any instruction was given or that exception was saved to giving it. We are aware that there are many cases, of which Grubbs et al. v. Cones et al., 57 Mo. 83, is a sample and a leading case, which hold that the failure of the clerk to indorse the date and fact of filing a paper, is held to be a mere clerical omission, not estopping a party from showing the fact and date of filing. But an examination of every one of them shows that this is held as to papers which the law requires to be filed and which when filed become part of the files and records of the case. [See, for example, Missouri Granitoid Co. v. Morschel, 150 Mo. App. 650, 131 S. W. 470, and cases there cited. See, also, Becher v. Deuser, 169 Mo. 159, l. c. 164, 69 S. W. 363.] In none of them is there any suggestion that briefs of counsel fall within this rule. The briefs of counsel, even if marked filed — and that is not the case here — are in no sense parts of the record. Our statute (Revised Statutes 1909, sections — 162 — 3852, 3853 and 3854) provides, for making up what is called the “judgment roll” (see Tutt v. Couzins, 50 Mo. 152); these sections being what were sections 7 to 9, pp. 419-420, Wag. Stat. 1872. No one would pretend that brief's were, under those sections, of the “judgment roll.” The fact that-counsel on either side of the case argued pro and con on the propriety of an instruction ,by no means establishes the fact that exception was duly saved to the giving of that instruction. That is ■hardly sufficient to show at whose instance the instruction was given, although morally, not legally, we may be satisfied that counsel would hardly argue against .an instruction which he had himself asked, or ¡that opposing counsel would attempt to argue the correctness of an instruction given,at the instance of his adversary. ' Our reports, both Supreme and AppeL late, are full, of cases in which counsel have argued at great length on the propriety of the ruling of the court ¡on the admission or exclusion of testimony, or the giving or refusal of instructions, and have assigned the ¡action of the court on these matters on motion for new trial.- But it has often turned out, on investigation of the record, that inasmuch as no exception had been saved to the ruling complained of, it was not before'the appellate court for examination. That is equally applicable in the trial court. It does not follow that in that court, any more than in our court,, that ’because counsel argued for or against the particular proposition that exception hád been duly saved to the action of the trial court on that. Furthermore, granting that counsel did object to a given instruction, that is not sufficient. Objection without exception saves nothing. It follows that it is impossible for us to hold that any of these instructions are before us as having been challenged. We must treat all-of them as having been, acceded to by the respective coun — 163 — sel in the case, in so far as any record which we can consider is concerned. The action of the trial court in this case, in refusing to make the corrections asked for by learned counsel for appellant in the original bill of exceptions, was correct.