LAWS MOTIONS LINKSIN THE SUPREME COURT FOR THE STATE OF MISSOURI
Lee Allen Martin, Plaintiff/Appellant )
Pro Se ) Supreme Court # 81426
V ) 37th Judicial Circuit Court, Howell
Director of Revenue ) County #CV398-699CC
State of Missouri, Defendant/Appellee ) Honorable R. J. Garrett
James A. Chenault III, Attorney )
OBJECTION TO THE PREPARATION OF THE RECORD ON APPEAL
COMES NOW the Appellant/plaintiff, Lee Allen Martin, and does object to the failure of truth, accuracy, and veracity of the Record on Appeal that is being prepared by the 37th Judicial Circuit Court for Howell County. Appellant brings this Objection pursuant to Missouri Supreme Court Rule 81.12(e) and 81.15(d). Appellant states the facts and offers exhibits as follows:
STATEMENT OF FACTS
LEGAL AUTHORITY
JUDY LINZENNI v. WILMA E. HOFFMAN 937 S.W.2d 723:
"At the outset, this Court will not look behind the record on appeal to determine whether some document is or is not properly part of the legal file. The rules are clear on how disputes regarding the correctness of the legal file are to be handled."
[31] If there is any dispute concerning the correctness of any legal file or transcript, the party disputing the correctness thereof shall designate in writing to the appellate court those portions of the legal file or transcript that are disputed. Such designation shall be filed with the appellate court within fifteen days after the legal file or the transcript, Whichever is in dispute, is filed.... The appellate court shall direct the trial court to settle the dispute and to certify the correct contents of such portion to the appellate court, and
such certification by the trial court shall become part of the record on appeal.
[32] Rule 81.15(d). Here, there has been no challenge to the correctness of the legal file.
[33] Absent a timely challenge, a legal file duly certified or approved is presumed to be correct and complete. Kummer v. Cruz , 752 S.W.2d 801, 809 (Mo. App. 1988); Lawyers Cooperative Publishing Co. v. Piatt, 128 S.W.2d 1072, 1073 (Mo. App. 1939). In addition, it is fundamental that on appeal the trial court's action is presumed to be correct and the burden is on the appellant to establish that the action was error. Hardy v. McNary, 351 S.W.2d 17, 20 (Mo. 1961). The presumption of validity that surrounds a judgment extends to every essential fact that must have existed in order for the court to enter a valid decree. Smith v. Smith, 429 S.W.2d 771, 773 (Mo. App. 1968).
ROBERT S. LOITMAN v. NESTOR WHEELOCK 1998.MO.30285
[18] We reverse and remand to permit the court and the parties to perfect the record and for a determination regarding the offer of proof. Rule 81.12(e) and 30.04(h). In the event it is not possible to correct and reconstruct the record on the missing events, including the offer of proof, the court shall grant a new trial in order to provide an opportunity for the parties to preserve a record including the testimony of the witnesses, objections, and rulings on objections and other proceedings required for appellate review. Civil Rule 81.12(a) and Criminal Rule 30.04(a) require a record of all the proceedings and evidence necessary to determine all questions presented. Where defendant is unable to obtain a complete and accurate copy of transcripts, despite due diligence, a reversal is required, but only if incompleteness is prejudicial. See, State v. McVay, 852 S.W.2d 408, 414 (Mo. App. E.D. 1991). An inability to secure a complete trial transcript, if prejudicial, requires a reversal and grant of a new trial. Lynn v. Plumb, 808 S.W.2d 439, 440 (Mo. App. 1991). Here, the missing portions are prejudicial because they prevent appellate review. If the record cannot be completed, a new trial must be ordered.
ARGUMENT
It is well known that "A court of record speaks only through its records, which import absolute verity." Brown v. General Motors Assembly Div., 695 S.W.2d 501, 502 (Mo. App. E.D. 1985). "A court's stamp on documents filed by the parties constitutes proof such documents are part of the record." See State ex rel. Nassau v. Kohn, 731 S.W.2d 840, 843 (Mo.banc 1987). As Blacks Law Dictionary defines Courts of Record "Those courts whose proceedings are permanently recorded, and which have the power to fine or imprison for contempt." In the case at hand the Trial Court does maintain the power to fine or imprison for contempt, but the trial courts failure to preserve a record denies it the status of Court of Record. The Missouri Supreme Court held in STATE EX REL. FAIRY M. NASSAU v. HONORABLE 731 S.W.2d 840:
"As relater observes, not only must a court speak through its records, but it too was respondent's duty to ensure the accuracy of the records of this proceeding. Circuit courts are courts of record and shall keep just and faithful records of their proceedings. Section 476.010, RSMo 1986. The probate division of the circuit court shall keep " record of probate proceedings, which shall contain all orders, judgments and decrees of the court" and " record of the minutes of the proceedings of the court." Section 472.280.1(9), (10), RSMo 1986. It is the special duty of every judge of a court of record "to require that the records and files be properly maintained and entries be made at the proper times as required by law or supreme court rule, and that the duties of the clerks be performed according to law and supreme court rule." Section 483.140, RSMo 1986. Under § 483.082.1, RSMo 1986, it is the duty of the clerks of all courts, and too vicariously the duty of every judge of a court of record by virtue of § 483.140, to:
[30] keep such records of the courts and in such a manner as may be directed by rule of the supreme court so that they shall accurately record all essential matters relating to the causes and matters within the jurisdiction of the court which are and have been pending before the court, including . . . transactions, orders and judgments or decrees related thereto showing the course and disposition of causes and matters."
Although, the statutes of the state of Missouri determines a court of record said court must preserve the record. The statutes of the State of Missouri calls to maintain true and accurate records. These statutes vest the Trial Court with a responsibility and when a trial court does fail in this official capacity then it does cease to be a court of record. When a trial court does not accurately record the parties present and Motions heard, and the clerk for said court fails to accurately and timely maintain the court’s file, then due process is denied. The Courts of the State of Missouri have held that the trial court always maintains the jurisdiction to make its record speak the truth. When the trial Court refuses to hear and change said record to speak the truth justice is not only denied it is obliterated.
WHEREFORE, the trial court has backdated official court records without a court order. The trial court has failed to maintain official court recordings and transcripts, pursuant to RSMo 485.050; which notes the duties of the Court Reporter. One duty "is to preserve all official notes taken in said court for future use or reference, and to furnish to any person or persons a transcript of all or any part of said evidence." The Appellant must object to the failure of accuracy of the Record on Appeal.
Respectfully Submitted,
_________________________
Lee Allen Martin
7050 County Road 2810
West Plains, Missouri 65775
CERTIFICATE OF SERVICE
I hereby certify this pleading was served upon all attorneys of record for each of the parties to this action and all parties not represented by counsel, in the following manner:
( ) By delivering a copy to him/her;
( ) By leaving a copy at his/her office with the clerk;
( ) By leaving a copy at his/her office with an attorney associated with him/her;
(X) By mailing a copy to him/her, as prescribed by law;
( ) By faxing a copy to him/her
On this 5th day of April 1999.
So certified: _____________________________
Lee Allen Martin
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