Franke v. Alexander , 88 Mo. App. 35 ( 1901 )

GOODE, J.

Anton Eranke and Willis Dehoney sued out a temporary writ of injunction on the twentieth day of July, 1898, against Thomas Osborn, W. A. Dearinger, John Alexander and J. H. Kistler. The writ was issued by Hon. J. O. Lamson, judge of the circuit court of Newton county, on the said day in vacation. Afterwards when the case came on to be heard, the temporary restraining order was dissolved and damages in the sum of $50 assessed against said Eranke and Dehoney and Frederick Menshke, a surety. From this order the appeal was taken. No bill of exceptions was filed and the case stands here on the record proper.

It is contended by the appellants that the restraining order was issued before the petition of the plaintiffs therefor was filed in the office of the clerk of the circuit court as required by the statutes. R. S. 1899, sec. 3629. Eor proof of this, they rely on the file mark of the circuit clerk and the date affixed to the temporary restraining order. The latter purports to have been .issued on the said twentieth day of July, while the file mark of the clerk shows that the petition was filed in his office on the succeeding day, to-wit, July 21, and with it the bond.

On the face of the papers it is claimed, therefore, that the circuit judge had no power to issue the temporary writ, that it was a nullity, that the defendants were not injured thereby and, therefore, there has been no breach of the conditions of the bond.

This view can not be adopted, for several reasons. All reasonable intendments are indulged as to the correctness and propriety of a court’s actions. When a party claims they were erroneous, it devolves on him to show clearly they were. The clerk’s file mark is only prima facie evidence of when the petition was in fact lodged in his office, and parol evidence is permissible to contradict it, to show that it was a mistake — that the document was actually filed" on some other date. Grubbs v. Comes, 57 Mo. 83; Bensley v. Haeberle, 20 Mo. App. 648.

In the absence of any bill of exceptions, how are we to know there was not evidence introduced which showed conclusively that the petition was filed prior to the issuance of the injunction ? It is doubtful if the file mark is part of the record proper or can be considered, unless included in a bill purporting to contain the evidence and completing the record.

But the appellants can not take advantage of the circumstance that the writ was prematurely granted, if that was done. They availed themselves of it to restrain the respondents and subject them to annoyance and injury. . The respondents were under no obligation to visit the clerk’s office to ascertain whether a petition had been filed in advance of the issuance of the writ, and if it had not been, defy the judge’s mandate. They had a right to presume the statutory procedure had been followed and showed commendable respect for the office and order of the judge of the circuit court when they observed his command without further inquiry. If there was any irregularity, the appellants were guilty of it and not the respondents, and the latter can not be prejudiced by what their adversaries did. Neither the appellants nor their surety, Menshke, can take advantage of the prematurity of the writ. 2 High on Injunctions, secs. 1637 and 1652; Hanna v. McKenzie, 5 B. Mon. 314; Walton v. Deviling, 61 Ill. 201; Cumberland Co. v. Hoffman Co., 39 Barber, 16; Stephenson v. Miller, 2 Littell, 306.

The judgment is affirmed.

All concur.