Givens v. Van Studdiford

• Decision Date: 16 January 1883
• Parties: JAMES GIVENS, Respondent, v. HENRY VAN STUDDIFORD, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 168

JAMES GIVENS, Respondent,

v.HENRY VAN STUDDIFORD, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 16, 1883.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Affirmed.

BROADHEAD & HAEUSSLER and E. C. SIMMONS, for the appellant.

JOHN R. CHRISTIAN, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages against defendant, for permitting a nuisance to be established and maintained on defendant's premises, by which the value of plaintiff's adjoining premises was injured, and the rents which would otherwise have been derived from them was lost. There was a verdict and judgment for plaintiff. The case has been here before, and is reported in 4 Missouri Appeals, at page 498.

The judgment was rendered on November 28, 1881. The motion for a new trial filed at the October term was overruled on May 1, 1882. There is nothing in the record as to any continuance of the motion for a new trial, either from the October term to the December term, or from the December term to the February term, or from the February term to the April term of the circuit court. It is contended for the respondent that, as the bill of exceptions was not filed until the third term after the case was tried; and, as no agreement of counsel that it should be filed out of time is shown, there is no bill of exceptions in the case that can be considered by this court.

The Statute of Westminster giving bills of exception in England, appointed no time for sealing these bills. But although no time was appointed, the English judges held that the nature and reason of the thing required that the exceptions should be reduced to writing when taken and disallowed. The usual practice in England and this country was, to request the judge to note the exception in writing, and afterwards, during the session of the court, to submit the bill of exception to him for correction from his notes. But, although the courts held that the bills ought to be presented during the trial, the parties were indulged during the term, and no longer. The reason of the rule was the obvious difficulty in settling a bill of exceptions, after the lapse of time when the matters complained of had ceased to be fresh in the mind of the judge.

Under the old Missouri statute (Rev. Stats. 1845, p. 820, sect. 25), the ruling was more strict, and it was held that the exceptions must be reduced to writing and signed during the trial. Consaul v. Lidell, 7 Mo. 250. Although by consent of parties, the bill might be presented for the judge's signature even at the next term. Pomeroy v. Selmes, 8 Mo. 727, 732; Ellis v. Andrews, 25 Mo. 328. No change in this respect was made by the reformed Code of Practice of 1849. But, soon after that date, the statutory provision was changed; and the law has remained ever since as it is to be found in the revision of 1855 (p. 1264, sect. 28), that, “such exception may be written and filed at the time, or during the term of court at which it is taken, and not after. All exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions.” Rev. Stats., sect. 3636. Under this provision the question arose, whether, if the trial court continued the motion for a new trial until the next succeeding term, this would have the effect of carrying with it the cause so that exceptions could be preserved and the bill signed at the next term. The supreme court held that it would. Riddlesbarger v. McDaniel, 38 Mo. 138. Judge Wagner, delivering the opinion of the court, says:--

“The statute provides that exceptions may be written and filed at the time or during the term of the court at which they were taken, and not after; and that all exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions. It has been the uniform practice in this state that a bill of exceptions could not be filed after the term had expired at which the judgment was rendered, except by consent of parties duly entered of record. But here the question is, whether the motion for a new trial can, at the instance of the court, be continued from the term at which the verdict was rendered until the next succeeding term, and have the effect of carrying with it the cause, so that, upon a final determination of the motion, exceptions may be preserved by the party. The statute intends that the exceptions shall be written out and filed during the term, while the cause rests in the breast of the court. But, where no motion for a new trial is made at the close of the term, there may be good reasons for continuing it until the next succeeding term for final hearing, and until a final hearing and disposition of the motion, the whole matter would unquestionably rest in the breast of the court, and it would be competent for it, in its discretion, for good cause, to sustain the motion and award a new trial. Until this result is reached, it cannot be said that the cause is finally determined. And, as the statute requires all exceptions to be embraced in the same bill, it will be correct if filed at the term when the matter is disposed of.”

It is remarked by Chief Justice Sherwood in Henze v. Railroad Company (71 Mo. 636, 644), that, since the decision in 38 Missouri Reports just cited, the precise point had never been before the supreme court. Whether, if the case were presented, it would be held that, if the motion were continued from term to term, a bill of exceptions might be signed at the term at which the motion was determined, without regard to the lapse of time, may perhaps be questionable. It does not seem necessarily to follow, because a bill...