Redd v. Missouri Pacific Railway Co.

JOHNSON, J.

This cause is here on the appeal of plaintiff from a judgment entered for defendant in the circuit court on the 18th day of August, 1903. The hearing in this court was set to occur on Monday, October 1, 1906. Three days before that date, appellant filed his abstract of record and brief, service of which had been acknowledged by respondent on September 10th, twenty days before the hearing. On September 20th, appellant acknowledged service of a motion to dismiss the appeal and a brief in support thereof, which respondent filed on September 26th. The grounds on which the motion is made are these: that the abstract of record filed by appellant does not show the filing of a motion for a new trial; the granting of leave to file a’ bill of exceptions; any orders extending the time to file bill of exceptions; the filing of the bill; the granting of an appeal; the verdict and the judgment. On September 28th, appellant filed what purports to be a supplemental abstract of record in which he endeavors to cure the defects in the original abstract pointed out by the motion to dismiss, by setting out the necessary record entries. In addition to producing those relating to the verdict, judgment, motion for a new trial and appeal, it is shown that leave was given appellant to file a hill of exceptions on or before the 2nd day of the December, 1903, term of the circuit court and that numerous orders, sixteen in all, were thereafter made extending the time for filing the bill, the last one being dated August 6, 1906. The bill was filed on August 20th, within the time fixed by that order. No leave was obtained from this court for the filing of the supplemental abstract. The appeal was brought here by the short form.

The original abstract of the record is defective in the particulars enumerated in the motion to' dismiss and in some others not mentioned therein. None of the errors assigned relates to the record proper and on motion respondent was entitled either to a dismissal of the ap *96 peal or to an affirmance of the judgment. [Cummings v. Eiler (not yet reported); Everett v. Butler, 192 Mo. 564 ; St. Charles ex rel. v. Deemar, 174 Mo. 122 ; Williams v. Harris, 110 Mo. App. 538 ; Kampf v. Transit Co., 102 Mo. App. 314 ; Hughes v. Henderson, 95 Mo. App. 312 .]

But appellant, in his plea that “common justice may he done,” asks us to brush aside technical rules and to consider the cause on the original and supplemental abstracts. Waiving the point made by respondents that none of the proceedings at the trial is before us for review because appellant has failed to show in either abstract the saving of an exception to the order overruling the motion for a new trial, we will assume for the purposes of appellant’s request that the supplemental abstract considered in conjunction with the original abstract presents all of the record facts essential to the consideration of the case on its merits.

Rule 15 of this court, which follows the provisions of section 813, Revised Statutes 1899, required appellant to serve respondent at least twenty days before the cause Avas docketed for hearing with a printed copy of an abstract of the record, etc. Appellant failed to comply Avith this rule so far as his purported abstract relates to the proceedings at the trial and subsequent thereto and did not bethink himself to correct the manifest errors of his abstract until after respondent had incurred the trouble and expense of preparing and filing its motion. Finding the abstract in such condition, respondent was under no duty to meet the case in any other aspect than that presented by his opponent and it would be unjust to him to hold that appellant three days be-' fore the hearing could confront him for the first time with an entirely different case from that made out in the original abstract when the rule under consideration is designed to give the respondent twenty days before the hearing in Avhich to prepare himself to meet the issues *97 on which the canse is to he submitted. We are not holding that we will not permit an appellant, on good cause shown, to amend his abstract at any time before the submission of the case under terms that will protect the rights of the respondent. But the granting of leave to amend in such cases is within our discretion and we will not exercise that discretion to aid an appellant except in cases where it appears that some good reason exists for the omission in the original abstract. The provisions of the statute and court rules are not mere arbitrary regulations, but are rules of procedure intended for the maintenance of an orderly and uniform method by which the identical case tried shall be brought before the appellate court in a way to afford each party to the controversy a fair opportunity to meet the contentions of his adversary and to enable the court to obtain an accurate, authentic and complete history of the essential features of the case. A firm, consistent and impartial enforcement of these provisions, though it may appear harsh in some cases, in the long run will result in fewer miscarriages of justice than would follow a lax or capricious observance.

In failing to apply for and obtain leave to lile his amended abstract, appellant seems to have acted on the supposition that he could make the amendment on the eve of the hearing as a matter of right. The only reason he assigns for the omission of such important matters from the original abstract is his “oversight.” This is not a good reason for the commission of so many patent errors. We can understand hoAV an appellant, being hurried in the preparation of his abstract, might inadvertently overlook one of a number of record entries and in such case on timely application we Avould permit- an amendment to be made on terms that Avould not prejudice the rights of the respondent, but, where, as in the present case, it is perfectly plain that a reasonable ef *98 fort was not made to comply with, the statute and court-rules, the conduct of the appellant is inexcusably negligent and we would not have permitted the amendment bad leave been asked on or before tbe date set for tbe bearing of tbe canse.

Generally, we dislike to dispose of a cause without a determination of the questions touching tbe merits involved therein. We have taken tbe trouble to examine tbe merits of this case and are satisfied that tbe trial thereof was free from prejudicial error.

Thus, without making shipwreck of a meritorious case, we are given an opportunity of emphatically repeating what has been so often said by tbe appellate courts to tbe effect that tbe rules of procedure may not 'be ignored with impunity and that tbe failure to make a reasonably diligent effort to observe them will be met Avith tbe enforcement of tbe penalties prescribed. This reiteration is made necessary by tbe frequency with Avhich our attention is called to defective records despite all that has been said on tbe subject.

Tbe motion to'dismiss tbe appeal is sustained.

All concur.