Llewellyn v. Spangler , 109 Mo. App. 396 ( 1905 )

BLAND, P. J.

(after stating the facts). — 1. The statute, on which this suit is bottomed, reads as follows :

“Sec. 825. After change, cleric to transmit record. —When any such order shall be made by the court or judge, the clerk shall immediately make out a full transcript of the record and proceedings in the cause, including the petition and affidavit and order of removal, and transmit the same, duly certified, together with all the original papers filed in the cause, and not forming a part of the record, to the clerk of the court to which the removal is ordered, and for failure to do so shall forfeit one hundred dollars to the party aggrieved, to be recovered by civil action.”

If the court was correct in refusing plaintiff’s peremptory instruction, then the judgment should be affirmed, as the giving of instructions for the defendant is not assigned as one of the grounds for new trial in the motion therefor and for this reason they are not reviewable. [State v. Headrick, 149 Mo. l. c. 404, 51 S. W. 99; Fullerton v. Carpenter, 97 Mo. App. l. c. 301, 71 S. W. 98.] The uncontradicted evidence shows that the Schuyler Circuit Court did not convene after November, 1902, until May 4,1903, and the defendant went out of office on January 1,1903, at which time he turned over his office and delivered the transcript and papers in the partition suit to his successor. Thereafter it became the duty of his successor to make the transmission and if he negligently failed to do so in time to have the cause docketed for the May term, 1903, of the Schuyler Circuit Court, the defendant is not responsible for such negligence. I think the evidence shows that the transcript was negligently withheld, but the question in the case is, should that negligence be ascribed to defendant ? He admits in Ms answer and in Ms testimony that he withheld the transcript, after he had it ready for transmission, for something like a month and until after the expiration of his term of office. He thereby tacitly confesses that he violated the letter of the statute, but offers to justify his conduct by showing that he did not violate the spirit of the statute by what transpired between himself and Mr. Whiteside, the attorney representing plaintiff’s adversary in the partition suit. I think the evidence shows that both Whiteside and the defendant acted in perfect good faith. I think it also shows that while the plaintiff did not accede to the proposition to arbitrate the suit, when first made to him by Whiteside, he did not refuse to consider it but did consider it and afterwards agreed to it. This evidence not only shows that Whiteside acted in good faith in requesting defendant to withhold the transcript, but that the plaintiff’s conduct warranted Whiteside to believe the matters in dispute between plaintiff and his brother, George Llewellyn, including the partition suit, would be submitted to arbitration. In these circumstances, Whiteside was justified in taking steps to prevent the further accumulation of costs in the suit and in asMng that the transmission of the transcript be withheld until the proposition to. arbitrate should be finally settled, especially in view of the fact that the Schuyler Circuit Court wouldnot convene for more than four months and the withholding of the transcript was, apparently, as much to the interest of the plaintiff as to the interest of Whiteside’s client. The evidence also shows that there was ample time, after the proposition to arbitrate was declared off by plaintiff, to have transmitted the transcript to the clerk of the Schuyler circuit court in time to have had it docketed for the May term, 1903. But it is contended by plaintiff, that as the defendant was not instructed by him, or by any one for him or representing him, to withhold the transcript, what Whiteside told defendant furnished no justification to him for withholding the transcript. The purpose of the statute is to prevent unreasonable delay or negligence in the making out and transmission of transcripts of causes in which a change of venue has been awarded and to secure an early opportunity for the trial of such causes in the courts to which the venue has been changed. What is meant by the term “immediately,” as used in the statute, is that the transcript shall be made out and transmitted in such convenient time as is reasonably necessary for performing these duties. [State v. Clevinger, 20 Mo. App. 626; City of DeSoto v. Merciel, 53 Mo. App. l. c. 60.] If due regard is given to the nature and circumstances of the things to be done and the purposes to be accomplished, I do not think it can be said, as a matter of law, that the defendant was negligent or that he violated the spirit of the statute in withholding the transcript under the circumstances shown in evidence, especially in view of the fact that he did not withhold it beyond a day when it could reasonably have been transmitted to the clerk of the Schuyler Circuit Court in time to have been placed upon the May term, 1903, docket of that court. The evidence shows that defendant’s successor might have transmitted the transcript at any time within two or three months after he took charge of the office and of the papers in the case, in time for the case to have appeared on the May term, 1903, docket of the Schuyler Circuit Court. If this had been done, plaintiff would not have had any ground to complain of the delay in the transmission, and certainly no cause of action against this defendant, based on the statute; for the purpose of the statute — to secure a speedy hearing— would have been as fully performed as if'the transcript and papers had been transmitted by defendant in December, 1902. For these reasons, I do not think the court committed error in refusing the peremptory instruction to find for plaintiff nor in refusing such of plaintiff’s instructions as would have practically withdrawn the case from the consideration of the jury.

2. Objections were made to the introduction of some of the evidence. The grounds of these objections are not specifically stated and I do not discover that any inadmissible evidence was admitted at the trial.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.