Greene County ex rel. Baker v. Wilhite

Thompson, J.,

delivered the opinion of the court.

The circuit court of Greene county at its November term, 1887, entered in this case the following final judgment: “At this day come the parties hereto by their respective attorneys, and the motion heretofore filed by the defendant, to dismiss this suit on account of the failure of the parties to give good and sufficient security for costs herein, as required by the rule and order of this court, being now seen and heard and fully considered by this court, is sustained. It is therefore considered and adjudged by the court that this suit be now dismissed; that plaintiffs take nothing by virtue of their writ and that defendants be discharged and go henceforth without day, and that they have and recover of said plaintiffs, Jane Baker and her husband, C. M. Baker, and S. A. Haseltine and B. R. Brewer, as securities upon said plaintiffs’ obligation for costs, filed herein, their costs in and about this suit had and expended, and have execution therefor.”

From this judgment’ B. R. Brewer and S. A. Haseltine, the securities for costs named therein, prosecute this appeal. The transcript which is sent to us contains numerous recitals of motions and rulings thereon ; but, as these motions and rulings are not presented by a bill of exceptions, we can only consider what appears on the face of the record proper. McNeil v. Ins. Co., 30 Mo. App. 306, and cases cited; Bevin v. Powell, 11 Mo. App. 216, and cases cited. In Bateson v. Clark, 37 Mo. 31, 34, it was held that the record proper, within the meaning of this rule, is nothing more than the original process with the return thereon, the pleadings, any orders substituting parties, and the entry of final judgment, and this rule was restated and applied by this court in Bevin v. Powell, supra. This, of course, was an attempt to state in a general way what in ordinary cases may be regarded as the record pr oper. There may be difficulty in restricting the record proper in all cases to the limits thus stated ; but the largest view of what is to be deemed the record proper can make it include no more in addition to what is above stated than those orders which emanate from the breast of the judge while sitting in court, and which are evidenced alone by the entries on the minutes of the court. Outside of such orders nothing can be noticed as belonging to the record proper upon any conception or theory with which we are acquainted.

Nor can we, upon any rule of procedure with which we are acquainted, review this case on appeal as though there were a bill of exceptions in the record, upon a conception that a bill of exceptions showing the facts which the appellants desire to bring to our attention ought to have been filed by the clerk of the circuit court. It is stated to us, and there is in the transcript a record entry bearing out the statement, that leave was given to the appellants until a day stated subsequent to the lapse of the term, within which to file a bill of exceptions. It is admitted that the bill of exceptions was not signed by the judge within that time. There is no rule of appellate procedure better settled and possibly none more frequently reiterated, than the rule that bills of exceptions, not filed within the time given by leave of court after the lapse of the term, cannot be considered on appeal or error. Sinclair v. City of Bolivar, 19 Mo. App. 37; Holloway v. City of Moberly, 18 Mo. App. 553; Hatcher v. Moore, 51 Mo. 115; St. Louis, etc., Ry. Co. v. Rapp, 39 Ark. 558; Freeman v. Brenham, 17 B. Monr. (Ky.) 603, 609; Nye v. Railroad, 124 Mass. 241. Nor can a nunc pro tunc entry of the allowance of a bill of exceptions be made at a subsequent term where there Is no paper or memorandum in the case showing the facts. Cunningham v. Wells, 16 Mo. App. .78.

It is further to be observed concerning this transcript that it shows that on the thirtieth day of July, 1888, which was after the term at which the judgment appealed from was rendered, and after the expiration of the time allowed for the signing and filing of the bill of exceptions, these appellants filed motions to correct the records of the court nunc pro tuno, so as to make them say that a certain so called “ omnibus motion” for a change of venue as to the judge in all of the cases of which this opinion wi 11 dispose, except the case against the defendant Pangritz, was filed before the motion in arrest of judgment was reached or ruled upon by the court; and also to set aside the judgment in this cause for certain reasons therein stated. These motions were overruled and these appell ants took a bill of exceptions to the ruling and this is embodied in the transcript. With reference to the motion touching the change of venue, it is sufficient to state that there was some evidence on the trial of the motions, which we are now considering, tending to show that the judge had overruled the motion in arrest of judgment by stopping the counsel and announcing his ruling to the clerk before the motion to change the venue had been made. Laying all other considerations out of view, this prevents us from considering whether or not the motion for change of venue ought to have been granted. With respect to the other branch of the motion, to set aside the judgr ment, it is sufficient to say that, even if by reason of any matter of exception which was in fact taken at the trial at which the judgment was rendered the judgment itself is reviewable, this matter of exception could not be brought to our attention, after the lapse of the term and after the lapse of the time allowed for filing and signing a bill of exceptions, by a second bill of exceptions to the overruling of such a motion. It has been held that where the judge has refused to sign a bill of exceptions, and a second bill, incorporating the rejected bill, is afterwards signed, the second bill does not present for review the questions intended to be raised by the first bill. Garth v. Caldwell, 72 Mo. 622. So in this case the appellants cannot revive and reinstate the exceptions which they lost, by failing to have their bill of exceptions signed and filed in time, by moving to set aside the judgment at a subsequent term, and by offering evidencb on the trial of such motion, by means of which they get into a second bill of exceptions the matters which,might have been proper matters of exception if saved by the first bill. If the appellants, through the fault of the opposite counsel, or of the judge, or of the clerk of the circuit court, failed to get a bill of exceptions signed and filed within the time allowed therefor, we cannot help them out of the difficulty, however much we might desire to do so. In such a case the exceptor’s remedy, if the trial term has not elapsed, is to have his bill of exceptions signed by bystanders; if it has elapsed, his remedy, if any, is a proceeding by mandamus to compel the judge to sign it. Garth v. Caldwell, supra.

It follows that in the present case the filing of the successive motions for security for costs, for a new trial, in arrest of judgment, and for a change of venue, together with the contents of such motions and any exceptions which may have been saved to rulings upon the same, must be laid entirely out of view upon this appeal; and we must consider the errors assigned only in so far as they reach matters which are exhibited on the face of the record proper. These may be resolved into the three following :

I. That the language of the obligation for costs given by the appellants precludes a summary judgment, and that dismissing the case for want of security for costs on motion is not a judgment within the terms of the obligation, which reads “for costs which may have or may hereafter accrue and be adjudged against the plaintiffs.” There is no obligation for costs exhibited by the record. The clerk has copied into the transcript a paper which purports to be an obligation for costs, but, upon the principles already stated, we cannot notice it, as it is not made part of the record by a bill of exceptions. 9

II. The next objection is that the bond was void because it was never approved, and the record is appealed to as being conclusive upon this point. There is no record entry in the transcript before us — and we must presume that it contains all the record entries applicable to the appeal — showing either that the bond was approved or that it was rejected. We cannot, therefore, presume, in opposition to the judgment of the circuit court, in the silence of the record, that the bond against the sureties in which the court entered judgment, had been rejected.

III. The third objection is that under the ruling of the supreme court in Hollingsworth v. Matthews, 19 Mo. 406, so much of the judgment as was against the sureties in the cost bond was void. It was ruled in that case that the sureties in a rejected bond for costs, where the suit is dismissed for a failure of the plaintiff to file an approved bond, are discharged. But, as already stated, there is no matter of record before us from which we can determine that this bond was rejected. This assignment of error, therefore, falls to the ground for the same reason as the previous one.

IY. The only other assignment of error which it is necessary to notice is, that the judgment is void as being against a married woman ; and that, a judgment being an entirety, if it is void as to one, it is void as to all. The fact that the judgment may have been erroneous, in so far as it adjudged costs against Mrs. Baker, does not operate to make it void as to these sureties; because it was good as against Mr. Baker, who was joined with his wife as a party to the suit, and this is sufficient to support it as against the sureties. Sureties on bonds given in the course of judicial proceedings have no day in court. They are not parties in the sense which permits them to appeal from the judgments rendered against principal parties in the cause, and they cannot, in general support an appeal by assigning errors for such parties. If the plaintiffs had appealed from the judgment on this ground, it would have presented a question for review ; but no such question is presented on an appeal taken by the sureties. We do not decide whether, if the husband of the female plaintiff had not been joined with her in the suit, the sureties could appeal and set up such an objection. Obligations for costs are frequently given in cases where suits are prosecuted by married women, by infants, or others who are not sui juris, and who are not personally answerable for the costs; and we are not prepared to hold that a judgment against undertakers for costs can only be sustained in cases where a judgment for costs is properly rendered against the party for whom they undertake. Moreover, the judgment, in the form in which it appears of record, is expressly authorized by section 1005, Revised Statutes.

Note by the reporter. — Cases numbered 4332, 4233, 4234, 4235, 4236, 4237, 4238, 4239, 4240, 4241, 4242, 4243, 4244 and 4245 are identical with the one above reported, as to the questions involved and the judgments rendered by the trial court. All the cases were disposed of in like manner by the St. Louis court of appeals,

The judgment will be affirmed.

All the judges concur.