Opinion
November 7, 1938.
1. — Appeal and Error. Court of Appeals, having before it purported record where attestation of clerk only went to judgment appealed from and order granting appeal, and no attestation to amended petition, bond, demurrer as shown and motions to dismiss and rulings thereon, purported additional abstract presenting different question would be accepted as correct, but as such record falls far short of compliance with rules, same cannot be considered.
2. — Appeal and Error. Where purported record could not be considered, and record proper contains no error, judgment will be affirmed.
Appeal from Lafayette Circuit Court. — Hon. Charles Lyons, Judge.
AFFIRMED.
L.I. Morris and Fred A. Benz for appellants.
(1) In considering respondent's general demurrer, all facts well pleaded and all reasonable inferences that might be drawn therefrom, in favor of the petition, must be regarded as being true. Graves v. Graves, 225 Mo. 468, 480; Birdsong v. Jones et al., 8 S.W.2d 98. (2) Under such a general demurrer, no issue is raised except that the petition is wholly insufficient to state any cause of action at all. Rodgers v. Ins. Co., 186 Mo. 540; Eads v. Gains, 58 Mo. App. 586. (3) Nor will such a general demurrer lie in this case because the petition shows on its face that appellant is entitled to some relief at least, on a common law right of damage, although he may not be entitled to all that he has asked. Corbett v. Ass'n, 4 S.W.2d 824; Wollums v. Ass'n, 46 S.W.2d 259. (4) The trial court erred: (a) In sustaining respondents' demurrer, because appellant's petition states a cause of action and is not subject to any of the matters demurrable as described in Sec. 770, Mo. St. 1929. (b) In dismissing appellant's cause of action, because under Sec. 1033, Mo. St. 1929, respondents neglected and failed to perform said clerk's ministerial duty of properly transmitting to the Supreme Court, the transcript, as alleged in appellant's petition, and are liable to appellant, for the injury as alleged he thereby sustained. "Clerk of Court, as a ministerial officer is answerable in civil action, for any act of negligence or misconduct in office, where damage results to the party complaining." 10 Am. Juris. 955, par. 20; 5 R.C.L. 629, par. 14; 11 C.J. 886 to 903, and cases cited; Higbee v. Spangler, 127 Mo. 220; Llewellyn v. Spangler, 109 Mo. App. 396; Henslee v. Canefax, 49 Mo. 295; State ex rel. v. Gideon, 158 Mo. 327; Selover v. Sheardown, 73 Minn. 383, 76 N.W. 50; Singletry v. Corp., 73 F.2d 453; Randol v. Garoutte, 78 Mo. App. 609; Collins v. McDaniel, 66 Ga. 203; In re Contempt of Clerk, 111 Ga. 89; Morrison v. Bartels et al., 138 Ill. 322; Richards v. Tyne, 149 Okla. 235; Fisher v. Levy, 156 So. 220; Railroad v. Weedon et al., 78 F. 584; U.S. ex rel. v. Bell, 127 F. 1002;
Ike Skelton for respondents.
(1) A demurrer admits only facts well pleaded and does not admit the conclusions or opinions of the pleader. Farrar et al. v. Shuss, 221 Mo. App. 472, 282 S.W. 512; Kleekamp v. Meyer, 5 Mo. App. 444, l.c. 448; School District v. Harral, 315 Mo. 602, 286 S.W. 86; Stephens v. Ass'n, 295 Mo. 596, 246 S.W. 40; Fox v. City of Joplin, 297 S.W. 449; State ex rel. v. Denton, 229 Mo. 187, 129 S.W. 709. (2) To state a good cause of action, facts showing actual damages must be alleged. Mere contingent, speculative or merely possible damages are insufficient. United States ex rel. v. Bell (Pa.), 127 F. 1002; Lebrecht v. Ry. Co. (Mo.), 237 S.W. 112. (3) It is not the duty of the circuit clerk to send an appeal transcript to clerk of appellate court. Appellant must cause same to be timely filed or judgment appealed from will be affirmed on motion. Secs. 1027, 1028, R.S. Mo. 1929; Kamerick v. Castleman et al., 21 Mo. App. 587; McCaffery v. Railroad, 31 Mo. App. 340; Caldwell v. Hawkins, 46 Mo. 263; Hofstatter v. Cantrell, 180 S.W. 435; State ex rel. v. Robertson, 264 Mo. 661, 175 S.W. 610; Stogsdill v. Ry. Co., 337 Mo. 126, 85 S.W.2d 447; State v. Pieski, 248 Mo. 715, 154 S.W. 747. (4) Appellant failing to meet the requirements of Sec. 1028, Revised Statutes of Missouri, 1929, is guilty of contributory negligence as a matter of law. 11 C.J. 895, sec. 94.
This is an action wherein this court is called upon to review the action of the circuit court in ruling on demurrer to plaintiff's first amended petition.
The plaintiff has caused a transcript of the record to be filed in this court which shows: That upon the 6th day of the regular March term, 1938, the same being on March 12, sustained a demurrer to plaintiff's said petition, and showing that plaintiff refusing to plead further, judgment was rendered against plaintiff.
The plaintiff has filed what purports to be a record wherein is shown an amended petition, a bond and a general demurrer which is shown as filed upon March 11, 1938.
Thereafter is shown a motion to dismiss, filed by defendants on March 11, 1938, which motion is shown as overruled. Thereafter is shown an order and judgment of dismissal which recites that same was made on sustaining of demurrer to plaintiff's first amended petition. Thereafter is shown that plaintiff made application for and was granted an appeal. Thereafter appears certificate of clerk as follows:
"STATE OF MISSOURI, "County of Lafayette-ss.
"I, B.E. Ragland, Circuit Clerk, within and for Lafayette County, Missouri, do hereby certify that the above and foregoing is a full, true and correct copy of the Judgment Appealed from and the Order Granting Appeal in the cause wherein The State of Missouri, Ex Rel: Otto L. Meyer, a minor by his legal guardian and curator, Louis H. Meyer, is plaintiff and Joe Turnbow and The United States Fidelity and Guaranty Company, a corporation, are defendants as fully and completely as the same appears of record in my office in Lexington, Lafayette County, Missouri.
"WITNESS MY HAND and the official seal of said Court, done at my office in Lexington, Lafayette County, Missouri, this 27th day of April, A.D., 1938.
"B.E. Ragland, Circuit Clerk.
"And thereafter, on April 28, 1938, the Clerk of said trial Court, made and filed in said Court of Appeals, in due short form, under said seal of said trial Court, a transcript of the record and proceedings in this cause."
It will be noted that the clerk's certificate only goes to judgment appealed from and order granting an appeal. There is no attestation whatever that what is claimed to be the record, i.e., showing as to amended petition, bond, demurrer as shown, and motion to dismiss and rulings thereon, is a true record. There is no attestation by the judge, the attorney for defendants, or even by attorney for plaintiff, that the matters above referred to constitute a record of the proceedings in the circuit court.
To further confuse matters the defendants file what is purported to be additional abstract, wherein is shown a demurrer filed on March 12, which contains over three pages of printed matter and presents an entirely different question from the one shown in defendants' record as filed upon March 11. We accept same as correct.
As far as any record filed by either plaintiff or defendants is concerned, we are unable to tell as to which demurrer was passed upon by the court.
What is filed is the printed record in this case falls so far short as complying to the rules of this court that we conclude same cannot be considered by us.
We go to the record proper filed in this court and find nothing in same that would justify us in convicting the trial court with having committed error. Under such a state of facts, we have but one course to pursue.
Judgment affirmed. All concur.