Opinion
March 15, 1932.
1. APPEAL AND ERROR: Mandamus. The Supreme Court may by mandamus compel a court of appeals to consider a case upon its merits where such court of appeals by misconstruing its own rules refuses to hear the case.
2. ____: "Timely" Filing of Motion. If a motion for new trial is not filed it is not "timely filed," if it is timely filed it is "filed."
3. ____: Construction of Rule. Where Rule 15, of the Kansas City Court of Appeals provided that if a respondent desires to question the sufficiency of appellant's abstract of the record because it fails to show the timely filing . . . of motion for new trial . . . on objection by the respondent the appellant shall have eight days within which to perfect his abstract of the record, considering whether such motion was filed at all brings up the question whether it was timely filed.
4. ____: Mandamus: Amendment of Petition and Writ. Where an alternative writ of mandamus commands respondent to review a case upon its merits the peremptory writ should follow the alternative writ; the court may permit relator to amend its petition for mandamus and the court may amend its alternative writ to conform to the amended prayer of the petition. An alternative writ commanding the court of appeals to review a case upon its merits may be amended so as to command the court of appeals to set aside an order overruling a motion for rehearing, set aside an order affirming the judgment of the circuit court, reinstate and hear the case.
PEREMPTORY WRIT AWARDED.
John W. Mather, John C. Collet, Jean Paul Bradshaw and B.F. Boyer for relator.
(1) Mandamus is the proper remedy to compel the Kansas City Court of Appeals to take jurisdiction for the determination on the merits of a case which it has erroneously dismissed on the theory that the appeal is not properly perfected. Art. VI, Sec. 8, Amendment 1884, Constitution of Missouri; State ex rel. Light Power Co. v. Trimble, 303 Mo. 284; State ex rel. C.R.I. P. Ry. Co. v. Smith, 172 Mo. 446, 72 S.W. 692; State ex rel. v. Broaddus, 210 Mo. 910; State ex rel. v. Trimble, 258 S.W. 697; State ex rel. v. Public Schools, 134 Mo. 311; State ex rel. v. Neville, 157 Mo. 386; State ex rel. Bayha v. Phillips, 97 Mo. 331, 10 S.W. 855; 51 L.R.A. 3; 19 American English Cyc. of Law (2 Ed.) 385. (2) In affirming the judgment in the case of Euler v. State Highway Commission, respondents have wrongfully deprived relator of its day in court. Sec. 1028, R.S. 1929; Rule 15, Kansas City Court of Appeals. (a) Relator has been deprived of its statutory right to appeal. State ex rel. C.R.I. P. Ry. Co. v. Smith, 172 Mo. 459; State ex rel. Wallace State Bank v. Trimble, 308 Mo. 287, 272 S.W. 72; Sec. 1028, R.S. 1929; State ex rel. Light Power Co. v. Trimble, 291 Mo. 537; Harding v. Bedoll, 202 Mo. 625; Underwood v. Murphy, 286 S.W. 123; Rule 15, Kansas City Court of Appeals. (b) The relator has been deprived of its constitutional right to have its appeal considered. Sec. 1, Amendment XIV, Constitution of United States; Sec. 10, Art. II, Constitution of Missouri; Art. VI, Sec. 15, Constitution of Missouri; Sec. 4, Amendment of 1884, Art. VI, Constitution of Missouri; Sec. 821, R.S. 1929.
Irwin Bushman and Ira H. Lohman for respondents.
(1) All matters now raised on mandamus were fully and finally adjudicated against relator by this court on certiorari and that judgment is a full, complete and final adjudication between the same parties, and this court will take judicial notice of its own records. State ex rel. State Highway Commission v. Trimble, Case No. 31,367, Certiorari denied June 30, 1931. (2) The abstract of the record as filed in the Kansas City Court of Appeals and attached to the original petition in mandamus in this court and marked Exhibit A is not a proper abstract of the record for the following reasons: (a) The abstract of the record fails to show that any Bill of Exceptions was signed or filed. (b) The abstract of the record fails to show the filing and overruling of motion for new trial or that the ruling on said motion was excepted to. (c) The abstract of the record fails to show the entry of any judgment. (3) Where the record proper does not show the filing of the Bill of Exceptions the bill cannot be reviewed and the recitals in the bill itself does not prove the filing. Hutson v. Allen, 236 Mo. 645; McGrew v. Foster, 66 Mo. 30; Dinwoody v. Jacobs, 82 Mo. 195; Alt v. Dines, 227 Mo. 418; Wallace v. Libby, 231 Mo. 341; Middleton v. Johnson, 242 S.W. 696; State ex inf. Barrett v. Parrish, 270 S.W. 688. (4) Where the motion for new trial was made in the Bill of Exceptions but the record proper does not show it was filed it will not be considered on appeal. Bollinger v. Carrier, 79 Mo. 318; Kansas City v. Masten, 169 Mo. 80; Hutson v. Allen, 236 Mo. 645; State ex rel. Flentge v. Sanford, 181 Mo. 134; Hays v. Foos, 223 Mo. 421; Perringer v. Unknown Heirs, 300 Mo. 535. (5) The abstract entirely omits the judgment. (6) The record proper must show all the steps taken to perfect the appeal, otherwise the appeal will be dismissed. State ex inf. Barrett v. Parrish, 270 S.W. 688; Proctor v. Trustees, 225 Mo. 51. (7) Where appellants' abstract makes no distinction between the record proper and the Bill of Exceptions and co-mingles the same the appellate court will consider only the record proper. Wallace v. Libby, 231 Mo. 341; Parkyne v. Churchill, 246 Mo. 109; Whiteley v. Watson, 178 S.W. 464; Hays v. Foos, 223 Mo. 421; Keaton v. Weber, 233 Mo. 691; Myrick v. Hamilton, 26 S.W.2d 1011; Lamonte Bank v. Crawford, 13 S.W.2d 1101; State ex rel. v. Loan Co., 291 S.W. 1081; State ex inf. Barrett v. Parrish, 270 S.W. 688; Craven v. Milling Co., 228 S.W. 513. (8) Where the original abstract of record does not show the filing of a motion for new trial during the term at which the verdict was rendered, the court, after respondent has taken exception to the abstract cannot grant leave to file a supplemental abstract setting out a record proper. State ex rel. Modern Woodmen of America v. Broaddus, 239 Mo. 366; Harding v. Bedoll, 202 Mo. 625; Evertt v. Butler, 192 Mo. 564.
Original proceeding in mandamus. Relator petitioned for our writ of certiorari, thereby seeking to have quashed the opinion of the Kansas City Court of Appeals affirming, on motion of respondent (plaintiff), the judgment of the Circuit Court of Cole County in the case of Euler v. State Highway Commission. At the same time it also petitioned for our alternative writ of mandamus to compel said Court of Appeals to set aside the affirmance of said judgment and to consider and determine said case upon the merits. On consideration of said petitions we overruled the application for our writ of certiorari, and granted the application for our alternative writ of mandamus.
In Euler v. State Highway Commission there was judgment in favor of plaintiff. Defendant appealed to the Kansas City Court of Appeals. In due time it filed in said court an abstract of the record. Immediately plaintiff filed a motion to affirm the judgment for the reason the abstract of the record proper did not show the filing of a motion for a new trial.
Thereafter, within eight days and sixteen days before the case was set for argument in the Court of Appeals, defendant filed in said court a supplemental abstract of the record showing, among other things, that at the same term of court and within four days after verdict, defendant filed a motion for a new trial. At said time defendant also filed in said court a motion to have the supplemental abstract made a part of the abstract of the record and considered as such on a review of the case. In filing the supplemental abstract defendant (relator) proceeded on the theory that it was authorized to do so under an amendment to rule fifteen of said court adopted on March 3, 1924. The pertinent part of the amendment follows:
"If in any case a respondent or defendant in error desires to question the sufficiency of appellant's or plaintiff in error's abstract of the record because it fails to show the timely filing, . . . of the motion for new trial . . . such objections and the reasons therefor shall be served in writing on appellant or plaintiff in error, or his counsel, ten days before the day on which the cause is docketed for hearing or within ten days after the abstract is served. Any such objections not so specified shall be deemed waived and will not be considered by the court. After service of such objections and reasons, appellant or plaintiff in error shall have eight days within which to perfect his abstract of the record by filing in this court a certified copy of so much of the record proper or bill of exceptions as will show the true entries, orders or rulings with respect to which the sufficiency of the abstract of the record is challenged."
In sustaining the motion to affirm the judgment, the Court of Appeals cited its decision in Underwood v. Murphy, 286 S.W. 123, as determinative of the question. The pertinent part of the opinion in that case follows:
"1. Plaintiff has filed a motion to affirm the judgment for the reason, among others, that the abstract of the record proper, served on respondent, fails to show that a motion for a new trial was filed in the cause. The motion must be sustained, as the record proper fails to so show, although it is shown in the bill of exceptions. . . .
"2. After the motion to affirm was served and filed, defendants filed here, in connection with their suggestions in opposition to the motion to affirm, a certified copy of the record entries of the circuit court which purports to show, among other things, the filing of the motion for a new trial. This was evidently done in an effort to comply with the amendment to our Rule 15, adopted on the 3d day of March, 1924. But this is not a matter that may be corrected in this way under said rule. The abstract of the record is questioned by plaintiff because it does not show the filing of the motion for a new trial. The question we are discussing now is not as to whether the motion was filed within four days or the `timely filing' of the motion for a new trial, as the words quoted are used in the amendment, but it is a matter as to whether there was a motion for a new trial filed at all.
"3. Plaintiff having called attention to the defect, it cannot be corrected by the defendants. [Karcher v. Jackson (Mo. Sup.), 217 991 S.W. 48; Brown v. O'Brien (Mo. App.), 217 S.W. 600; State ex rel. v. Bender (Mo. Sup.), 239 S.W. 833.] Defendants make no point involving anything shown in the abstract of the record proper. The motion to affirm the judgment is sustained."
In other words, the opinion holds that the "timely filing" of a motion for a new trial cannot be shown by a supplemental abstract unless the abstract of the record proper shows that such a motion was filed. It is not so provided in the amendment to the rule. If the abstract of the record proper does not show that a motion for a new trial was filed, it also does not show that such a motion was "timely filed." Therefore, the failure of the abstract of the record proper in the Euler case to show that a motion for a new trial was filed also was a failure to show that such a motion was "timely filed." It follows that under said amendment the appellant in said case, on objections made by respondent, was authorized within eight days to perfect said abstract by filing in the Court of Appeals a certified copy of that part of the record of the trial court, which showed a "timely filing" of the motion for a new trial. Of course, when said certified copy was filed it also showed that a motion for a new trial had been filed. The respondent judges have misconstrued the rule. They should set aside the order overruling the motion for a rehearing, set aside the judgment affirming the judgment of the circuit court and reinstate said cause in said court. [State ex rel. v. Smith, 172 Mo. 446, 72 S.W. 692; State ex rel. Field v. Ellison, 277 Mo. 46, 209 S.W. 107; State ex rel. v. Trimble, 308 Mo. 278, 272 S.W. 72; State ex rel. Light Power Co. v. Trimble, 303 Mo. 284, 258 S.W. 696.] But respondents contend that we are without authority to compel a review of the case on the merits for the reason that another motion to affirm the judgment in said case and a motion to strike the bill of exceptions from the record are pending for disposition on the docket of said court.
The alternative writ commands respondents to review the case on the merits. Of course, the peremptory writ should follow the alternative writ. [State ex rel. Oil Co. v. Baggot, 96 Mo. 63, l.c. 71, 8 S.W. 737.] In this situation we should permit relator to amend the prayer of the petition. [Sec. 835, R.S. 1929; State ex rel. v. Beach, 28 S.W.2d 105, l.c. 108.] The petition as amended prays as follows:
"Wherefore, your petitioner prays this honorable court to award against the said Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, Judges of the Kansas City Court of Appeals, a writ of mandamus commanding and requiring them that they, as members of said Kansas City Court of Appeals, do, without further excuse or delay immediately set aside the order made by them on the 4th day of May, 1931, overruling the motion for rehearing filed by the appellant (petitioner herein) in the said cause of Ernest H. Euler, Respondent, and State Highway Commission of Missouri, Appellant, and that they vacate their said order affirming judgment heretofore made and entered in said cause (No. 17,027) in said Court of Appeals; and that the said Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, as members of said Kansas City Court of Appeals, forthwith make an order reinstating said cause in said court, and that they do then proceed with said cause" in due course to a disposition of the case.
We amend the alternative writ to conform to the amended prayer of the petition, and our peremptory writ should be awarded to conform with the amended alternative writ. It is so ordered. All concur.