Holt v. Simmons , 14 Mo. App. 450 ( 1883 )

Lewis, P. J.,

delivered the opinion of the court.

The appellant suggests that the record of this cause is diminished, in that certain orders- of continuance of his motion for a new trial, from the June to the October term and from the October to the December term, 1882, of the circuit court, were in fact made, and yet do not appear in the transcript. No sort of reference to such orders, or either of them, occurs in the bill of exceptions.

It is a well established rule, that the original bill of exceptions can not be amended by means of any proceeding in the appellate court. Its only authentication is the signature of the trial judge, and the clerk can add nothing to the bill which the judge has not thus approved. The paper is usually signed in skeletbn, with appropriate calls for motions, instructions, or other matters of exception, which the clerk is authorized to copy in full under such calls. If he fails to insert such matter in the transcript, he may be directed by certiorari so to do, since that will be only fulfilling the direction of the judge, wherein the omission had disobeyed it. It is essential, therefore, to certiorari for the supplying of such omitted matter, that it shall have been called for or set out in the original bill of exceptions, and that this fact shall appear, in some form, from the clerk’s transcript of that document.

As to matters which belong to the record proper, as distinguished from the bill of exceptions, the rule is different. Such matters are in the exclusive keeping of the clerk, and he may lawfully supply any that have been omitted, whenever, by virtue of a certiorari, he may have access to the record in the appellate court.

It follows, from what is so far shown, that if the omitted matter in the present case is matter of exception only, and is no part of the record proper — there being nothing here to show that it was contained in, or referred' to by, the original bill of exceptions — the writ of certiorari must be denied. But if the omitted matter pertains to the record proper of the cause, the writ should be granted. Thus far all the members of this court agree. There is a difference of opinion, however, upon the question of classification. A majority of the court hold that the orders of continuance of the motion for a new trial, if such there were, were matters of exception only, and constituted no part of the record proper. From this proposition Judge Thompson dissents.

In Bateson v. Clark (87 Mo. 34), our supreme court says: “ The record proper, by law, is the petition, summons, and all subsequent pleadings, including the verdict and judgment. * * * Exception is matter which arises wholly from the action of the court in the progress of the trial, as the admission or rejection of evidence, the sustaining or overruling of some motion, the giving or refusing of instructions, etc. This is strictly no part of the record, unless made so by the bill of exceptions,” etc. It would seem that the continuing of a motion for new trial is quite as much a part of “ the action of the court in the progress of the trial,” as the sustaining or overruling of the same motion would be. The supreme court has, many times, refused to notice a motion for new trial, or in arrest, although set out in full by the clerk in his general record, or memoranda, because it was not incorporated in the bill of exceptions. Marquis v. Clark, 64 Mo. 601; Stevenson v. Saline County, 65 Mo. 425; Collins v. Barding, 65 Mo. 496; Jefferson City v. Opel, 67 Mo. 394; Robinson v. Hood, 67 Mo. 660; Gorby v. Tracy, 62 Mo. 511. It is hardly possible to notice the continuance of a motion without noticing the motioíi itself. If our appellate practice excludes such notice in one case, it must do so equally in the other. We find nothing in the rulings of the supreme court to justify the position that entries upon the minutes or record of proceedings, because"signed by the judge belong, therefore, to the record proper. On the contrary, transcripts of such entries, relating to motions, have been uniformly held to be mere clerical memoranda, and no part of the record proper. “A clerk can not make anything a record which he pleases to write in the order book or sees fit to copy into the record.” Jefferson City v. Opel, 67 Mo. 394.

It appearing, for the reasons stated, that the clerk can not better the record in the appellant’s interest, whatever might be his return upon a certiorari, the writ is denied.

Judge Bakewell concurs ; Judge Thompson dissents.