Summary
In Longmire v. Diagraph-Bradley Stencil Mach. Corp., Mo.App., 176 S.W.2d 635, 646, it is said, "Though there must be a meeting of the minds of the parties to constitute a contract, such meeting of the minds is to be determined by the expressed, and not by the secret, intention of the parties."
Summary of this case from Industrial Products Mfg. Co. v. Jewett LumberOpinion
Opinion filed June 25, 1943.
1. — Appeal and Error — Death of Court Reporter Rendering His Shorthand Notes Unusable. Though an appellant is seriously inconvenienced and hampered in the perfection and presentation of an appeal by reason of the death of a court reporter whose notes could not be read by others, the respondent, who is not responsible for the appellant's unfortunate situation, would be greatly wronged by a reversal and remanding of the cause on that ground in that he would lose a judgment in his favor though every inference and presumption is that it is a valid judgment.
2. — Appeal and Error — Right of Appeal. At common law the losing party had no right of appeal, and his only remedy was by an equitable action if the judgment was the result of fraud, accident or mistake.
3. — Appeal and Error — Right of Appeal. Under the statutes of Missouri every losing party has the right to appeal and to have his case reviewed as to the law by an appellate court, such losing party having saved and preserved exceptions to adverse rulings below in the manner provided by Section 1174 et seq., R.S. Mo. 1939; and such appeal is circumscribed by the express mandate of Section 1228, R.S. Mo. 1939, that the judgment shall not be reversed unless the appellate court believes that error was committed by the trial court against the appellant materially affecting the merits of the action.
4. — Appeal and Error — Burden to Show Error Prejudicial. On appeal the burden is on the complaining party to show that error complained of was prejudicial.
5. — Appeal and Error — Death of Court Reporter Rendering His Shorthand Notes Unusable. There is no legal authority in an appellate court to reverse and remand a case because of the death of the stenographer who reported the trial and whose shorthand notes could not be read by others, even though no other notes of the evidence were taken or preserved by the attorneys.
6. — Judgment — Motion to Vacate. Ordinarily equitable interposition cannot be invoked in aid of a motion to vacate a judgment, a petition in equity being necessary therefor; and an appellate court has no original jurisdiction in an equitable action.
7. — Appeal and Error — Right of Appeal. The right of appeal depends solely upon the statute, and an appellant has no rights except such as are given by the statute.
8. — Appeal and Error — Appellate Procedure. An appellate court has no authority to apply equitable doctrines to the appellant's ability or want of ability to make up a bill of exceptions, where the statutes provide the procedure.
9. — Appeal and Error — Appellate Procedure. If the course provided by statute for preserving exceptions and the settling and filing of the bill of exceptions is not pursued, or even if perchance circumstances are such as to make it difficult to pursue the same, an appellate court cannot adopt a different and other course and relieve the appellant of the statutory requirements.
Motion of Appellant to Reverse Judgment and Remand Cause for a New Trial.
MOTION DENIED.
Wayne Ely for appellant (movant).
(1) Respondent's contention that appellant (defendant) will not be prejudiced by a denial of its motion is unsound. Appellant has not abandoned, and has no intention of abandoning, any of the assignments of error in its motion for new trial, several of which cannot be properly presented to this court without a transcript of the testimony. In four thereof defendant complains of error in admitting testimony in behalf of plaintiff, including the complaint that plaintiff's witness Jones, a broker, was permitted, over defendant's objections, to testify "to opinions and conclusions as to the right of plaintiff to receive payment or compensation." (2) Respondent's argument as to defendant's alleged delay in bringing the case to an appeal should not receive serious consideration. The events mentioned by respondent occurred before the motion for a new trial was passed on, which was overruled on February 1st, and the reporter died twelve days later. The bill of exceptions was ordered on the day, the motion was overruled. That the motion was passed several times was due to the failure of the reporter to furnish the transcript of Longmire's testimony, which was ordered the day the motion was filed. (3) Respondent's contention that appellant has not made a sufficient showing of diligence in preparing a bill of exceptions is without merit. It is true that respondent offered to cooperate with appellant in agreeing upon a transcript, but appellant's counsel does not have sufficient notes from which to prepare an adequate transcript and cannot prepare one from memory. While the written evidence is available, various objections were made to the admission of most of the exhibits; and the arguments of counsel and remarks of the court in connection therewith are not available. Appellant made every reasonable effort to have other court reporters read the deceased reporter's notes of the trial, but without avail. (4) In State v. Thompson, 130 Mo. 430, cited by respondent, the facts involved were unlike those here present. In State v. McCarver, 113 Mo. 602, where the stenographer destroyed his notes and could not reproduce the testimony, the court, finding the defendant could not file a proper bill of exceptions, reversed and remanded the cause. In Woods v. Bottmos (Mo. App.), 206 S.W. 410, where the stenographer's notes were destroyed by the burning of the courthouse, the court, comparing the McCarver and Thompson cases, followed the former and sustained the motion to reverse and remand. For the same reason the case of Todd v. Security Insurance Co. (Mo. App.), 206 S.W. 412, was reversed and remanded. In Robinson v. Burton (Mo. App.), 139 S.W.2d 942, 947, the court held it could not pass on the weight and value of evidence presented in a stipulation of counsel. (5) We submit that appellant's inability to file a bill of exceptions is due to no fault of its own; that the questions of error presented in its motion for new trial and which it intends to present to this court cannot properly be decided without a bill of exceptions; that appellant has not been guilty of neglect; that it is entitled to have a complete record of the case as tried in the circuit court; and that no such complete record is available or can be made except by another trial.
R. Walston Chubb for respondent, in opposition to motion.
(1) Appellant will not be prejudiced by denial of the motion. Upon argument of the motion for new trial appellant considered only one point worthy of argument, namely, the sufficiency of the evidence that defendant (appellant) had requested that the service be rendered. Appellant caused a transcript to be written up of the testimony of plaintiff, consisting of ninety-three pages. Appellant's witnesses are available. The deposition of appellant's president, a witness below, was taken and is available; and all of the written evidence, constituting of eighteen exhibits, mostly letters between the parties, is available. (2) Failure of appellant to obtain a transcript prior to death of the reporter may be ascribed in part at least to his own delays in bringing the case to an appeal. (3) Appellant has not shown due diligence or taken advantage of respondent's offer to prepare a bill of exceptions adequate for the consideration of all the important issues in the case. (4) The destruction of the shorthand notes of the official stenographer does not as a matter of law entitle a party to a new trial. Whether a judgment should be reversed and the cause remanded on a ground of this kind depends upon the facts and circumstances of the particular case and is a matter within the sound discretion of the court to be dealt with upon equitable principles. In Scharff v. Holschbach, 296 S.W. 469, where the court stenographers had destroyed their notebooks, this court, applying the foregoing principles, sustained a motion to reverse and remand. The court found that the appellants (plaintiffs) were free from fault or negligence and had been diligent in attempting to have a bill of exceptions prepared, placed importance upon the fact that defendant's counsel admitted that he could not have prepared a bill without the stenographers' notes, and said that the record was voluminous. The facts of the case are unlike those here present. In Stevens v. Chapin, 227 S.W. 874, where the stenographers' notes were destroyed when the courthouse burned, the Kansas City Court of Appeals, applying the principles above mentioned, overruled a motion to reverse and remand, holding that there was a lack of effort to prepare or agree upon a bill of exceptions, and that it did not appear that it would have been impossible to get up a bill had such effort been made. That court, in Green v. Kansas City, 77 S.W.2d 652, applied the same principles to a different state of facts and held that the cause should be reversed and remanded. The Supreme Court recognizes the rule that each case of this nature rests upon its own facts and should be determined upon the equitable principles. In State v. McCarver, 113 Mo. 602, where the clerk had refused to prepare a transcript unless his fee were advanced and the stenographer had destroyed his notes, the court reversed the judgment and remanded the cause. In State v. Thompson, 130 Mo. 438, the court overruled a motion to reverse and remand based on the fact that the stenographer died about a month after the trial without having transcribed his notes and no one else could read them; the court holding that it did not appear that a bill of exceptions could not have been prepared containing the substance, at least, of the testimony. In Woods v. Bottmos, 206 S.W. 410, where the stenographer's notes were destroyed by the burning of the courthouse, the Kansas City Court of Appeals, upon the authority of State v. McCarver, supra, sustained a motion to reverse and remand, holding that the situation presented was unlike that in the Thompson case. In Larson v. Shockley, 231 S.W. 103, and McDowell v. Bimel-Ashcraft Mfg. Co., 9 S.W.2d 643, the Springfield Court of Appeals applied the principles stated above. Applying such principles to the facts of this case, appellant's motion to reverse the judgment and remand the cause should be overruled.
Appellant has filed a motion to reverse and remand this cause, wherein it is alleged that the cause was tried in the circuit court on October 26th and 27th, 1942, resulting in a verdict and judgment for the plaintiff (respondent); that on October 29, 1942, defendant (appellant) filed its motion for a new trial, which motion was overruled on February 1, 1943, and on March 23, 1943, the defendant filed its affidavit for appeal, which appeal was duly allowed to this court. That the official court reporter, who had taken down in shorthand all of the proceedings and testimony given in the trial, died on February 13, 1943, and others are unable to read the shorthand notes. The motion then sets out at length the assignments of error which were contained in the motion for new trial, and prays that this court reverse the judgment and remand the cause.
That appellant is seriously inconvenienced and hampered in the perfection and presentation of its appeal, by reason of the death of the court reporter, cannot be gainsaid by anyone familiar with appellate procedure. On the other hand, the respondent, who is in no manner responsible for appellant's unfortunate situation, would, by a reversal and remanding of the case, be greatly wronged, in that he would lose a judgment in his favor in the face of the fact that every inference and presumption is that it is a valid judgment.
At common law the losing party had no right of appeal, and his only remedy was by an equitable action if the judgment was the result of fraud, accident or mistake. Under our statutes every losing party does have the right to appeal, and to have his case reviewed as to the law by an appellate court, such losing party having saved and preserved exceptions to adverse rulings of the trial court in the manner provided by statute (Section 1174 et seq., R.S. 1939), and such appeal is circumscribed by the express mandate that the judgment shall not be reversed unless the appellate court believe that error was committed by the trial court against the appellant, and materially affecting the merits of the action. [Section 1228, R.S. 1939.] And the burden is on the complaining party to show that the error was prejudicial. [Balderson v. Monaghan (Mo. App.), 278 S.W. 783; Owl Drug Co. v. Frank C. Whalen Advertising Co. (Mo. App.), 156 S.W.2d 777; Martin v. Bulgin (Mo. App.), 111 S.W.2d 963.]
In the early days before the use of stenography or shorthand came into existence a bill of exceptions was prepared by the appellant from memorandum or notes made during the course of the trial and from the recollection of the attorneys and the trial judge. No serious difficulty was encountered in such method of preparing and settling a bill of exceptions. And we can see no reason or excuse why the parties and attorneys in any ordinary case, conversant as they are with the facts and points presented during the trial, could not put in writing in narrative form every important fact, objection and ruling of the court, and sufficiently complete to enable the appellate court to review the proceedings and alleged errors in an intelligent manner. If the procedure were as appellant contends and seeks by this motion, it would mean that the validity of every judgment would depend not only upon the health, life, accuracy and ability of the court reporter but upon his honesty as well, or his stenographic notes might be stolen or purposely destroyed by some designing person, and the validity of the judgment thereby destroyed.
The questions here presented, or similar questions, have been before the Supreme Court on at least three occasions, and as we read the cases that court definitely pointed out the proper procedure. [State v. McCarver, 113 Mo. 602, 20 S.W. 1058; State v. Thompson, 130 Mo. 438, 32 S.W. 975; Graves v. Chapman, 241 Mo. 650, 145 S.W. 464.] Considering these cases in order:
State v. McCarver, 113 Mo. 602, 20 S.W. 1058: This was a criminal case, the charge being murder, and the defendant was convicted and sentenced to twenty-five years imprisonment in the penitentiary. A so-called skeleton bill of exceptions was prepared and filed in the circuit clerk's office, together with the stenographer's transcript of the trial proceedings. The circuit clerk, contrary to his duty, refused to prepare and send to the Supreme Court a full transcript unless his fee therefor was advanced. The time for filing the transcript in the Supreme Court expired, and defendant sued out a writ of error. The return to the writ of error failed to include the stenographer's transcript, and a writ of certiorari was issued and the clerk ordered to send to the Supreme Court that transcript, whereupon it was ascertained that the transcript had been lost or destroyed. The stenographer's shorthand notes had been lost or destroyed, and consequently another transcript could not be procured. The Supreme Court reversed and remanded the case, but with these significant words:
"In any ordinary case we should have great hesitancy in reversing a judgment on account of such a defect in the record as is here presented; but being fully satisfied that the defendant is entirely without negligence or blame in the matter and has made honest efforts to remedy a defect which unremedied would cause our affirmance of the judgment, without giving him an opportunity to be heard on the merits, we feel constrained, in order that right and justice may be done, and a grevious wrong perhaps averted, to reverse the judgment and remand the cause."
Thus in the McCarver case the motion to reverse and remand was sustained, but with the qualifying statement that in any ordinary case the court should have great hesitancy in reversing the judgment. That case cannot be accepted as enunciating a rule of procedure. It was a criminal case wherein the judgment was taking from the defendant his liberty for twenty-five years. The defendant had done everything that the law required him to do in order to have his case reviewed, and the entire fault lay at the hands of the circuit clerk, and the time had passed when another bill of exceptions could be settled and filed. And, as indicated by the opinion, because of the enormous injustice that might be visited upon an innocent man the court went beyond the strict statutory procedure, and in effect said it was doing so. The words of the court indicate that its opinion was not to be taken as establishing a precedent.
In the later case of State v. Thompson, 130 Mo. 438, 32 S.W. 975, the Supreme Court, speaking through the same learned judge who wrote the opinion in the McCarver case, stated the law definitely and without equivocation and denied the right of the court to sustain such a motion. It is seldom in any pending case that we find an authority so clearly in point as to the law and so analogous in the facts as the Thompson case bears to the case before us. The opinion is short and is as follows:
"The evidence has not been preserved in the bill of exceptions, the stenographer having died about a month after the trial without having transcribed his notes, owing to a long illness beginning soon after circuit court adjourned, and continuing down to the time of his death, and no one else can translate the stenographer's notes of the evidence.
"Upon these grounds, and upon the further ground that no other notes of the evidence were taken, either by defendant's or other counsel in the cause, we are moved, on behalf of defendant, to reverse the judgment and remand the cause.
"This we can not do. Notwithstanding the sickness of the stenographer, there was nothing to prevent defendant's counsel to have remembered and written down the substance, at least, of the testimony and have the same inserted in the bill of exceptions, because it is evident the evidence could not have been lengthy, and due diligence required of them when discovering the stenographer was dangerously ill, to have preserved the evidence in some way. This might have been done if their memory failed, by calling on the witnesses who had testified at the trial. [Whitmore v. Coates, 14 Mo. 9.]
"This case does not resemble, in any particular, that of State v. McCarver, 113 Mo. 602.
"As no evidence has been preserved, and there is no error in the record proper, judgment is affirmed."
By careful checking we find that the Thompson case has never been criticized or questioned, and under the authority of that case the pending motion to reverse and remand must be denied.
The other Supreme Court case, Graves v. Chapman, supra, arose from the fact that after the bill of exceptions had been prepared and settled it was taken out of the circuit clerks office by an attorney, and while at his office was destroyed by fire. The stenographer's notes had been lost or destroyed. The motion of the appellant to reverse and remand was was denied because of the apparent negligence of appellant in failing to procure a copy of the bill of exceptions, but although the court denied the motion on the ground of negligence of the appellant, it expressly said, "We have not considered the question as to whether or not, under the facts of this case, this court has the legal authority to sustain the motion, but have placed our ruling solely upon the fact that there is no merit in it." Consequently the case of Graves v. Chapman in no manner affected the ruling in the case of State v. Thompson.
This would be a good place to quit and say no more were it not for the fact that several cases involving similar questions have been before the several Courts of Appeals, and some of these cases do not seem to follow and be in accord with the above cases decided by the Supreme Court.
In the case of Stevens v. Chapin, 206 Mo. App. 594, 227 S.W. 874, the Kansas City Court of Appeals denied the motion to reverse and remand, but as was the opinion of the Supreme Court in the case of Graves v. Chapman, its ruling was restricted to and based on appellant's negligence and failure to exercise due diligence, and the court did not consider the question of the respondent's rights or of the legal authority of the court to sustain such a motion.
In the case of Woods v. Bottmos (Mo. App.), 206 S.W. 410, and in the case of Todd v. Security Ins. Co. (Mo. App.), 206 S.W. 412, the same Court of Appeals did sustain a motion to reverse and remand and in each opinion it stated that it was doing so "Under the authority of State v. McCarver." As hereinabove pointed out the case of State v. McCarver was not an authority for such ruling, and was not so considered in the later case of State v. Thompson.
In the case of Larson v. Shockley (Mo. App.), 231 S.W. 1030, the Springfield Court of Appeals denied a motion to reverse and remand, citing and following the case of Stevens v. Chapin, supra, and without any consideration of the question of the respondent's rights or the legal authority of the court to sustain such a motion.
In the case of Scharff v. Holschbach, 220 Mo. App. 1139, 296 S.W. 469, this court granted a motion and reversed and remanded the case, considering only the question of diligence of the appellant, and giving no thought or expression to the respondent's rights or the legal authority of the court to sustain such a motion.
In the case of McDowell v. Bimel Ashcraft Mfg. Co. (Mo. App.), 9 S.W.2d 643, the Springfield Court of Appeals denied a motion to reverse and remand, and based its ruling on negligence or delay of the appellant, without considering the question of the respondent's rights or the legal authority of the court to sustain such a motion.
In the case of Green v. Kansas City (Mo. App.), 77 S.W.2d 652, the Kansas City Court of Appeals granted a motion to reverse and remand basing its judgment on a showing of due diligence on appellant's part and with no consideration of respondent's rights or of the legal authority of the court to sustain such a motion.
It will thus be seen that the Courts of Appeals have not followed and been guided by the opinion of the Supreme Court in the case of State v. Thompson, supra, which can only be interpreted as holding that there is no legal authority in an appellate court to reverse and remand a case because of the death of a stenographer who reported the trial, even though no other notes of the evidence were taken or preserved by the attorneys. And the cases of State v. McCarver, supra, and Graves v. Chapman, supra, inferentially hold to the same effect.
This is not so harsh a ruling as at first appears. We know from actual experience, that a lawyer who has prepared and tried the case, can from memory alone depict in narrative form an accurate statement of the evidence and rulings of the court. In fact to an extent that is exactly what every lawyer must have in mind in preparing a motion for a new trial; he must have in mind every adverse ruling which he deems prejudicial and erroneous, and seldom does he fail to overlook a meritorious point. It is a misfortune that has come to appellant without fault on its part, but it would be most unjust to visit appellant's misfortune upon respondent who is blameless. It was suggested in Stevens v. Chapin, supra, that the determination of the question should be upon principles analogous to equitable doctrines rather than the strict rules of law. We do not think so. Ordinarily the rule is to the contrary, that equitable interposition cannot be invoked in aid of a motion to vacate a judgment; a petition in equity being necessary for that purpose. [Davis v. Robinson, 126 Mo. App. 293, 102 S.W. 1048.]
However, this court has no original jurisdiction of an equitable action, and even a court which did have original jurisdiction of such an action would certainly want a far greater showing than is contained in the motion before us. It would want to know to what extent appellant's counsel was conversant with the facts; whether he had statements signed or not signed from the various witnesses; what notes or memorandum was kept of the proceedings, not only by appellant's attorney but also by respondent's attorney and by the judge who presided; whether appellant's attorney has attempted from memory or otherwise to get up a bill of exceptions, and if so why it cannot be done; whether respondent's evidence would be available at another trial; and other matters that must be in the mind of a Chancellor invoking equitable doctrines.
The right of an appeal depends solely upon statute, and the appellant has no rights except such as are given by the statute. And both the Supreme Court and the Courts of Appeals have only such jurisdiction as is specially conferred upon them by the statutes and the constitution; both are limited to the powers named in the constitution, and statutes in accordance therewith, and neither have original jurisdiction in matters of ordinary litigation, hence we as an appellate court would have no authority to apply equitable doctrines to appellant's ability or want of ability to make up a bill of exceptions, where the statutes provide the procedure. We are to review such record as is brought up from the trial court, and not determine what the appellant can or cannot preserve as a part of the record in the trial court. The statutes, Revised Statutes Missouri, 1939, Section 1174 et seq., point out fully how exceptions may be saved and preserved in the record, and how the bill of exceptions may be settled and filed. [See: State ex rel. v. Taylor, 134 Mo. App. 430, 114 S.W. 1029.] If that course is not pursued, or even if perchance circumstances prevail which make it difficult to pursue, the appellate court cannot adopt another and different course and relieve the appellant of the statutory requirements.
The motion to reverse and remand is denied. The appeal is returnable to the October Term, 1943, of the court, hence no further orders are made at this time. McCullen and Anderson, JJ., concur.