
    State ex rel. Gerst Brothers Manufacturing Company, a Corporation, Relator, v. Erwin G. Ossing, Judge of the Circuit Court, City of St. Louis, Respondent.
    
    7 S. W. (2d) 428.
    St. Louis Court of Appeals.
    Opinion filed June 19, 1928.
    
      Banister, Leonard, Sibley cG Me Roberts and F. P. Aschemeyer for relator.
    
      Mark I). Eaglet on and Janes A. Waechter for respondent.
    
      
      Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 969, n. 45, 46; Courts, 15CJ, p. 901, n. 12.
    
   NIPPER,, J.

— This is an original proceeding in mandamus, brought to compel one of the circuit judges of the city of St. Louis to sign a bill of exceptions. Objection was made to the signing of the bill of exceptions on Hie ground that there was in fact, no exceptions taken to the action of the trial court in overruling a motion for a new trial. The trial judge, in refusing to sign the bill of exceptions, certified that be refused to sign said bill because after the motion for a new trial Avas overruled tlie losing party made no effort to perfect an appeal during the term, and in fact, saved no. exceptions to tbe overriding' of the motion for a neAV trial.

Our alternative writ Avas issued, and in the réturn and answer filed, the issues are narrowed doAra to the proposition as to Ai-liether or not it is necessary to except to the action of the trial court in overruling a motion for a neAV trial, at the time such motion is overruled.- The relator alleges that at the time such motion for a ucav trial was-overruled, there Avas a practice and custom of long standing in the circuit court of the city of St. Louis, for laAA'yers not to appear' in the respectivc divisions of said circuit court on decision days, but to secure the decisions and rulings from -the published minutes of said circuit court, as published in a certain paper called the Daily Record, and' that there aius and had been in effect for some years a custom and ride of. practice. Avell kuoAm to all the-judges of said circuit 'court, and-members of the bar, to the effect that such an exception to an adverse" ruling on a motion for a neAir trial Avas considered saved- as a mattei' of course, the exceptions to be noted by the reporter transcribing the-testimony, and inserted in the bill of exceptions.

These allegations Avere denied, and it became a question of fact as to whether or not there A\Tas such a rule and custom existing in the circuit court of the city of St. Louis, of the kind and character alleged by the relator. We heard the testimony of some of the judges of the circuit court on this matter, and it appears from such testimony, that the preA-alent rule of practice in the circuit court of thé city of St. Louis, is that such exceptions may be considered saved as a matter of course, and that the bar of the city so understands such to be the rule and practice. It is Avell settled in this. State that courts Imve the poAA’er to prescribe rules of practice to. regulate the. proceedings in such courts, and that such rules are enforceable, and must be adhered to if they are reasonable and in harmony AA?ith the laAir.

Tn State ex rel. Brockman Mfg. Co. v. Miller, 241 S. W. 920, our Supreme Court had this question, before it, identical in character, Avith the exception that it Avas conceded in that-ease- that such, a rule had been promulgated in the circuit court of the city of St. Louis. In the case before us, the evidence discloses that there, is no Avritten rule of court to that effect, but it is a general practice and custom, and has been for some time, that such exceptions may be considered saved as a matter of course. The mere fact that such rule had not been put into the form of a Avritten rule, would not; in our opinion, change the situation.

Tn Eichwedel v. Metropolitan Life Ins. Co., 216 Mo. App. 452, 270 S. W. 415, avc had. before us a rule to the effect that exceptions to adverse ruling's during the trial, including the giving and refushig of instructions, will be considered Avaived unless expressly saved to each ruling at the time, and that no stipulation to the contrary would be recognized or held valid by the court. We upheld this rule as not being in conflict but in conformity with the statute. In the present case, we have a rule to the opposite effect, and more nearly like the rule referred to in the Miller case, supra. It is evident that some such a rule as the one in question ivould be almost a necessity in the circuit court of St. Louis. It ivould work a very great hardship if lawyers were compelled to be in court, or watch all proceedings so closely that it would be necessary for them to be present in court and save their exceptions to the overruling of a motion for a new trial. The rule .that such is not necessary is such a rule as naturally grows out of the very necessity of the practice. This would not be in violation of the statute, nor would it in any'way injure the adverse party, or deny him any right to which he would otherwise be entitled.

Having found that such a rule or custom exists, it necessarily follows from- the ruling in State ex rel. Brockman Mfg. Co. v. Miller, supra, that it should be enforced and adhered to. It follows from what has been said that our alternative writ should be made peremptory. It is so ordered.

Daues, P. J., and Becker, J., concur.  