Sahlein v. Gum , 43 Mo. App. 315 ( 1891 )

Rombauer, P. J.

This is a controversy between attaching creditors, and interpleaders, touching the validity of the sale of certain goods, made by the attachment debtors to the interpleaders. The cause was tried by the lower court without a jury, and resülted in a judgment in favor of the interpleaders. The plaintiffs, appealing, assign for error that the court excluded legal evidence offered by them, and refused proper declarations of law which they asked.

The first point to be decided is, whether there is any record evidence before us of either fact constituting the grounds of complaint, as the respondents claim that the record fails to show that a bill of exceptions was ever signed by the judge, or filed by the clerk, as required by law. The record entry of May 7, 1890, recites that, at the term of the court - when this cause was tried, the Hon. J. P. Hale, Judge of the Thirteenth Judicial Circuit, was sick, and by his request the Hon. Joseph Cravens, Judge of the Thirtieth Judicial Circuit, proceeded to hold the term of the court. The record entry of May 9, 1890, recites that the cause was tried by the court sitting as a jury, and that judgment was rendered in favor of the interpleaders, and that, on the same day, a motion for new trial was- filed, heard and overruled, and the plaintiffs prayed for and were granted an appeal, with leave to file a bill of exceptions within sixty days. The transcript then recites that “ afterwards, to-wit, on the sixteenth day of June, 1890, there was filed in the office of the clerk of the circuit court of Howell county a bill of exceptions in a cause,” etc. The-pretended bill of exceptions purports to be signed on the thirteenth day of June, 1890, by Gr. I). Burgess, Judge.

These being the facts, we are bound to conclude that there is no legal bill of exceptions in this case. We take judicial notice of the fact that G-. D. Burgess was, on the thirteenth day of June, 1890, judge of the Eleventh Judicial Circuit, but that fact of itself did not authorize him to sign a bill of exceptions of a cause tried in the Thirteenth Judicial Circuit, and tried by the judge of another circuit, as far as the record discloses ; and the record shows no facts whatever, which would even intimate how He came to sign the bill.

It was held in Voullaire v. Voullaire, 45 Mo. 602, that it is the duty of the judge, who tries the case, to go through with it, and entertain . and dispose of a motion for new trial, and the decree in that pause was reversed on the sole ground, that' another judge than the one who tried the cause had passed on the motion for new trial. It necessarily results from this that it is the duty of the judge, who hears the cause, to pass upon and sign the bill of exceptions, because as Judge Philips aptly asks in Cranor v. School District, 18 Mo. App. 397, how can a judge certify that certain evidence was offered a.nd excluded at the trial, when he was absent? It was thus repeatedly held that thei death or termination of office of the trial judge between the date of the judgment and a final disposition of the motion for a new trial, would in many cases work a new trial as a matter of law. Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 Mo. 180.

In order to avoid such a result, when the bill of exceptions was not signed by the judge, who tried the cause, before the expiration of his term, the law was amended in 1889 by the enactment of the following provision: Section 2171, Revised Statutes, 1889 : “In any case where the judge, who heard the case, shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the, court, where the case was heard.”

We do not deem it necessary to decide whether, upon the showing of the record before us and under the above provision, Judge Cravens or Judge Hale should have signed the bill in order to make it part of the record. As neither of them signed it, and it was not signed by bystanders, the bill was a nullity. Smith v. Railroad, 55 Mo. 601; Fulkerson v. Houts, 55 Mo. 302.

There is no error in the record proper, so that the judgment must necessarily be affirmed. In view of the state of the record, however, we deem it proper to 'add that we have looked over what purports to be a report of the testimony and instructions, and that it is highly improbable that their embodiment in the record of a legal bill of exceptions would have changed the result. Judgment affirmed/

All the judges Concur.,