State ex rel. Winsor v. Taylor , 134 Mo. App. 430 ( 1908 )

NORTONI, J.

This is an original proceeding by mandamus. It is sought to compel the Hon. Daniel G. Taylor, one of the judges of the circuit court of the city of St. Louis, to either sign or certify why be refuses to sign the bill of exceptions in a certain case wherein the relator William S. Winsor is defendant and Edward C. C. Reisel is plaintiff. The material facts appearing in the record disclose that Reisel recovered a judgment against relator Winsor in the division of the circuit court of the city of St. Louis over which the respondent, Judge Taylor, presides. In due time, relator filed his motion for new trial. This motion was continued and finally overruled on September 30, 1897. During the same term at which the motion for new trial was overruled, on October 5, 1897, the court allowed relator Winsor an appeal, which was duly perfected to the St. Louis Court of Appeals, and granted him leave to file his bill of exceptions on or before sixty days from that date. Thereafter, within proper time, competent orders were duly made extending the time for filing the bill of exceptions until January 10, 1908. To the end of preparing the bill of exception, relator’s counsel procured a transcript of the evidence in the cause from the official stenographer of the court. He made numerous erasures and insertions therein and finally submitted the bill to the counsel of his adversary for inspection. Counsel representing plaintiff in the cause did not agree to the numerous changes made in the transcript before mentioned and therefore noted' his objections to the proposed bill of exceptions on a separate sheet of paper and returned the same to counsel representing the exceptor, the present relator. Relator’s counsel conceded several of the objections noted by opposing counsel but declined to concede all of them; >and on December 23, 1907, appeared in open court and handed the proposed bill of exceptions as prepared, together with the objections thereto by opposing counsel and his concessions to the counsel’s objections, to Judge Taylor for examination. Touching the matter of what occurred in open court on December 23, 1907, and thereafter, concerning the bill and why it was not signed, Judge Taylor recited the following facts in a certificate over his signature, prepared at the request of the parties and incorporated in the pleadings here; in effect, as an agreed statement.

“I, the undersigned, Daniel G-. Taylor, Judge of the Circuit Court, City of St. Louis, Division No. 2, and before whom the above-styled cause was tried, do certify that defendant’s counsel presented to me the attached hill of exceptions in open court on December 23, 1907, and that on said date, and at the same time, plaintiff’s counsel presented his objections to said bill of exceptions, which objections axe hereto attached and marked ‘B;’ that thereupon I extended the time for filing defendant’s bill of exceptions until January 10, 1908, by a proper order: that immediately after taking possession of defendant’s bill of exceptions and plaintiff’s objections thereto, I delivered the same to the court reporter with directions to examine the stenographic notes relating to this cause in the light of the changes in the original transcript, and plaintiff’s objections, and to report to me.

“The report of the court reporter, which is marked ‘C’ was delivered to me by him on or before the 6th day of January, 1908, and by me considered. Upon such consideration, I concluded I could not sign the bill of exceptions as presented for the reason that it did not correctly set out the facts. I took no further action on this matter and gave it no further consideration until January 14, 1908, when counsel for both parties pursuant to notice sent by me, appeared in court, when defendant’s counsel urged the court to sign the bill of exceptions as presented, as of either the date when the same was delivered to the court, or as of some day prior to January 10, 1908, or to extend the time for filing by nunc pro timo entry, so as to cover a date of signing and filing of the bill of exceptions; this the court refused to do. From the last-mentioned date to this the court has had the matter of signing and filing of said bill of exceptions under daily consideration, aided by counsel, with a view of determining a proper course to pursue. This certificate is made in order that facts not otherwise of record may be considered by any other court called upon to review the action of this court in the premises, and is signed in chambers on this 18th day of January, 1908.

(Signed.) “Daniel G. Taylor, Judge. (Seal).”

It appears'from the respondent’s return and in fact stands conceded in the case that relator’s counsel wholly failed to call upon Judge Taylor at any time after the proposed bill of exceptions was placed in his possession on December 23d. He made no inquiry concerning the same until notified by Judge Taylor on January 14th, four days after the time for filing the bill had expired, that he had not signed it. On that date, having received notice from Judge Taylor, the relator’s counsel appeared in court and proffered to concede all of the objections of opposing counsel provided Judge Taylor would sign the bill. The time for filing the bill having expired, Judge Taylor declined to affix his signature thereto for the reason he had no further jurisdiction in the premises. Relator’s counsel also insisted that the court should extend the time for filing by an order nunc pro tuno, or that the judge should sign the same and permit it to be filed nunc pro tunc. This request was also declined. It appears Judge Taylor determined the bill, as then proposed, to be untrue on January 6, 1908, and declined to affix his signature thereto for that reason. The judge recites in his return that he failed to indorse on the bill that it was untrue, etc., for the reason relator’s counsel wholly failed to call upon him or to indicate his desire thereabout. He avers he was ever willing to reject the bill as untrue by indorsing the fact, in accordance with the statute thereon, but omitted to do so for the reason relator’s counsel did not call upon him thereabout and he did not know what further action the relator desired to take in the premises. It is averred that-Judge Taylor did not know what action the relator desired him, as judge, to take; that is, whether the relator desired him to indorse the bill as untrue, and thus refer relator to the process of obtaining a bystanders’ bill, or whether the relator might he’ willing to concede the objection of adverse counsel and conform. the bill to the true facts, as understood by the judge, in order to have it signed by him. The time for filing the bill of exceptions having expired on January 10, 1908, of course the court was entirely without authority to permit it to be filed and incorporated of record on January 14th, as requested by counsel for relator, when he proposed in open court to concede the objections thereto, provided the judge would sign the bill and order it filed. [State ex rel. v. Gibson, 187 Mo. 536.] The court also rejected the proposition made at the same time to enter its order nunc pro time extending the time for filing the bill, so as to include that day, January 14th, or to order the bill filed nunc pro tuno. This was proper for the reason no minute or memorandum is shown to be of record in the cause upon which such an order nunc pro tunc could be based.. [Diamond Match Co. v. Wabash R. R. Co., 121 Mo. App. 43; In re Gardner, 41 Mo. App. 589.]

The only question in the case worthy of consideration is whether or not Judge Taylor is required by statute to either sign the bill, or, having determined it to be untrue, indorse the cause thereon for not signing it and return it to relator’s counsel without a suggestion from him to do so and without being advised what course the relator desired. To properly determine this question, our statutes touching such matters should be considered and construed in the light of the practice which obtains with the courts and members of the bar in settling, obtaining the signature to, and filing bills of exceptions. There are several sections of our statute pointing out the course to be pursued with respect to obtaining the true narrative of the cause tried on the circuit, in the bill of exceptions. These statutes are grouped together. They pertain to the same subject-matter and should be construed in pari materia.

“Seo. 728. Exceptions to be filed, when. — Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as' the court may, by an order of record allow, which may be extended by the court or judge in vacation for good cause shown, or within the time the parties to the suit in which such bill of exceptions is proposed to be filed, or their attorneys, may thereafter in writing agree upon, which said agreement shall be filed by the clerk in sáid suit and copied into the transcript of record when sent to the Supreme Court or Courts of Appeals. All exceptions taken during the trial of a cause or issued before the same jury shall be embraced in the same bill of exceptions.

“Seo. 729. Duty of Judge refusing to sign bill.— If the judge refuse to sign such bill on the ground that it is' untrue, he shall certify thereon under his hand the cause of such refusal.

“Seo. 730. Exceptions, when signed by bystanders. —If the judge refuse to sign any bill of exceptions, such bill may be signed by three bystanders who are respectable inhabitants of the State, and the court, or judge thereof in vacation, shall permit every such bill, if the same be true, to be filed in court or in the clerk’s office, if ordered to be filed in vacation, within the time specified in such order of the court.

“Seo. 732. Exceptions to be part of record taken signed. — Every bill signed by the judge or by the bystanders and filed in court, or with the clerk thereof in vacation, as in this chapter provided, shall form a part of the record of the cause in which it is filed.

“Seo. 733. Proceedings taken court refuses the filing of exceptions.— When the judge shall refuse to permit any bill of exceptions signed by the bystanders to be filed, and shall have certified that it is untrue,,either party in the suit may take affidavits, not exceeding five in number, in relation to its truth.

“Sec. 734. Disposition of affidavits. — -Such affidavits shall be taken and deposited in the clerk’s office within five days after the return of such bill of exceptions so certified to be untrue to the party presenting the same, and on appeal or writ of error, copies of such affidavits shall be annexed to and form a part of the record of the cause.

“Sec. 735. Disposition of exceptions in appellate court. — Every court to which an appeal or writ of error shall be taken shall admit, as part of the record of the cause, every bill of exceptions taken therein, upon its appearing satisfactorily to such court that the truth of the case is fairly stated in such bill, that the same was taken accordingly to law, and that the court refused to permit such bill to be filed.

“Seo. 736. Truth of bill, how determined. — The truth of every such bill shall be tried by the affidavits required by this article to be taken and filed in the clerk’s office.”

It appears from the statutes above quoted that there are two ways in which the bill of exceptions may be properly authenticated and become a part of the record in the case. First, by the signature of the judge and its filing in proper time. Second, the bill by bystanders is authorized when the judge 'determines the bill proposed by counsel is untrue and refuses to sign it for that cause, indorsing such cause upon the bill. It appears that after the judge has rejected the bill as untrue, he may still refuse to permit the filing of a bystanders’ bill if he considers such bill untrue as well. Upon his refusal to permit the bystanders’ bill to be filed, the exceptor is authorized to procure affidavits concerning its integrity, which the adverse party may combat if he sees fit by counter affidavits, and thus create an issue touching the integrity of the contents of the bill, which issue is to be determined on the affidavits submitted to the appellate court. Such is the plain purport of the statutes. [State ex rel. Millett v. Fields, 37 Mo. App. 83.] The practice obtains and it is the common course of conduct on the part of courts and the members of the bar to hold frequent conferences to the end that the bills of exceptions shall be settled and signed by the trial judge without resorting to the more extraordinary proceeding- pointed out for obtaining a bystanders’ bill. This is a matter of common knowledge among us, as lawyers. We all know it. This practice obtains for the very sufficient reason that it is less embarrassing to the profession and the appellate courts as well for bills to be settled by the judge Avho tried the cause, Avithout resorting to the bystanders’ statute. In considering this subject, the very learned Judge Bliss, in Bowen v. Lazalere, 44 Mo. 383, 385, remarked that the’ statutory mode of bringing up the facts of a case by bystanders’ bill, is unusual and pregnant with embarrassment to the appellate court by imposing upon it the duty of determining the truth of the bill against the certificate of the trial judge. It is obvious that such course entails great embarrassment upon the appellate court for the reason it Avould be difficult to decide the issue presented from mere affidavits and without the privilege of seeing and examining the witnesses face to face. It is true the statutes above quoted are remedial in their nature and should be liberally construed in aid of the bill. [3 Ency. Pl. and Pr., 508.] Hoav-ever this may be, it is settled in this State by the case of Bowen v. Lazalere, 44 Mo. 383, 385, that section 729, supra, which imposes the duty upon the trial judge, on refusing to sign the bill, of certifying thereon the cause of such refusal, should be liberally construed as well, to the end of avoiding the procedure involved in procuring and presenting a bystanders’ bill. The principle is asserted for the purpose of relieving the appellate court from the embarrassment involved in determining the truth of the bill from affidavits pro and con on the subject. In that case the court said:

“As this statutory mode of bringing up the facts of a case is unusual and is liable to embarrass the appellate court by the necessity imposed upon it of deciding the truth of the bill, we take the opportunity of saying that it ought to be avoided if possible. To that end, the judge who presides at the trial would do well to state briefly wherein the bill is untrue, if he objects to it upon that ground, and to give the parties such assistance in making it up as his impartiality and his notes of the testimony eminently qualify and enable him to do. The law, however, does not require that he write the bill, or change one presented to him — only that he shall certify the cause of his refusal to sign it. A liberal construction of this requirement, we think, would make it his duty to point out in a general' way, but with such particularity as to make it understood, in what the untruthfulness consists.”

When the statute last mentioned is liberally construed to the end of avoiding the procedure involved in the bystanders’ bill, it appears it' does not affix the duty upon the trial judge to act by rejecting the bill as untrue until there has been some conference between the judge and counsel for the exceptor thereabout. The statute reads: “If the judge refuse to sign such bill on the ground that it is untrue, he shall certify thereon under his hand the cause of such refusal.” The employment of the word “refuse” essentially implies that some suggestion should be made to the judge to sign the bill,' or do otherwise. Nothing appears in the case under advisement to the effect that any conference was had by counsel for exceptor with the judge. No suggestions were made as to what relator’s counsel desired if the bill were found to be untrue. The proposed bill, with the objections thereto and certain concessions to the objections, but with other objections still standing against its integrity, was submitted to the judge on December 23d. He examined the matter and determined, about January 6th, or four days before the time for its filing had expired, that the bill was untrue. He said he did not affix his certificate thereon to that effect for the reason the relator’s counsel made no further inquiry thereabout and made no request. It is true a party is not entitled to have a bystanders’ bill until after the trial judge shall have refused in the statutory manner to allow and sign the bill presented. [State ex rel. Millett v. Field, 37 Mo. App. 83.] Nevertheless the policy of the law is to avoid the situation calling for a bystanders’ bill; and thus frequent conferences looking to a settlement of the bill by the trial judge, are usually had. The case of Bowen v. Lazalere, 44 Mo. 383, 385, 386, is suggestive of such a conference, etc. Our statute does not require the trial judge to assume the initiative, however, in such cases. In addition to the multitudinous duties of the circuit judge, it is not imposed upon him as a duty to either go out and look up or send for the exceptor or his counsel in such circumstances, nor is it his duty to return the bill of- exceptions to the exceptor within a time limit with his reasons for declining to sign it indorsed thereon, as it is in some States, notably Georgia. [Pretorious v. Barnes, 75 Ga. 313.]

The majority of the court are of the opinion that-Judge Taylor acted in accordance with policy of our law in waiting to hear from relator’s counsel as to what course he desired to pursue in the matter. For the judge to have refused to sign the bill and indorse thereon his cause therefor, would have entailed the additional trouble and embarrassment of procuring and presenting the bill vouched for by bystanders. The judge had the right to assume that relator’s counsel would call upon him within the time for conference thereabout, at which time counsel might have been willing to concede, as he seemed to be on January 14th thereafter in open court, the objections alleged against the bill, and procure the judge’s signature thereto in preference to assuming the burden of the bystanders’ bill. However all of this may be, counsel in fact did not appear, and he made no inquiry in that behalf. He failed to appear until notified by the judge on January 14th, or four days after the time for filing the bill had expired. So we see had Judge Taylor actually refused-to sign the bill and indorsed his reasons for such refusal thereon, the relator’s bill could not have been filed. This for the reason there was no obligation on the part of the judge to send the bill to him, and he did not call for it. In this connection it may be said further that had Judge Taylor actually signed the bill during the time it was in his possession, his signature would have availed nothing to the relator for the reason his counsel did not call for it and it would not have been filed on or before January 10th. Although the judge may sign the bill, it is not his duty to file it. Such duty devolves alone upon the exceptor. This for the reason that if the bill is signed, the exceptor may see fit to abandon the appeal and withhold its filing. [3 Ency. Pl. and Pr., 479; Gulf, etc., Ry. Co. v. Halliday, 65 Tex. 512.]

It therefore appears that if relator’s rights were forfeited in the matter at all, the forfeiture occurred on account of the inattention of counsel rather than from default of the judge, for whether the judge signed or rejected the bill, it would not have been filed in time.

The writ of mandamus is not a writ of right. It should only go upon the exercise of a sound legal discretion in accordance with the established rules of law. The exercise of that degree of discretion forbids the-mandatory order in this case. The peremptory writ is denied.

Goocle, J., concurs; Bland, P. J., dissents.