Deere, Mansur & Co. v. Hucht

• Decision Date: 29 October 1888
• Parties: DEERE, MANSUR & COMPANY, Respondents, v. HUCHT & FIERLING, Appellants.
• Court: Kansas Court of Appeals

32 Mo.App. 153

DEERE, MANSUR & COMPANY, Respondents, v. HUCHT & FIERLING, Appellants.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Vernon Circuit Court. --HON. D. P. STRATTON, Judge.

MOTION to affirm judgment for failure to file transcript sustained and judgment affirmed.

Gage Ladd & Small, for the motion.

The record shows tat the appeal was allowed February 4, 1888. The first day of the next term of this court was March 5, 1888. This year is a leap-year. The transcript was filed September 10, 1888. The motion to affirm is based upon the ground that the transcript was not filed at least fifteen days before the March term of this court. A brief has been filed here on behalf of the appellants in which it is claimed that this appeal was returnable to the October term. The language of the statute is: " Sec. 3717. All appeals taken thirty days before the first day of the next term of the supreme court, or the St. Louis court of appeals, or the Kansas City court of appeals, shall be returnable in such next term, and all appeals taken in less than thirty days before the first day of such next term, shall be returnable in the second term thereafter. The appellant shall cause to be filed in the office of the clerk of the supreme court, or St. Louis court of appeals, or Kansas City court of appeals, at least fifteen days before the term of such court to which the appeal is returnable, a perfect transcript of the record and proceedings in the cause." Sess. Acts, 1885, p. 217. It has been held that a notice served on September 19, to take depositions on the twenty-second day of the same month, was sufficient. Littleton v. Christy's Adm'r, 11 Mo. 393. The statute governing this case provided that the notice " shall be served at least three days before the day of taking the depositions." R. S., 1845, p. 417. Where a mechanic's lien was filed February 25, and notice of the claim given to the owner on February 15, it was held sufficient. Hahn v. Dierkes, 37 Mo. 575. The statute, which in this case was the subject of construction provided: " Every person, except the original contractor, who may wish to avail himself of the benefit of this act, shall give ten days notice before the filing of the lien, as required by this act, to the owner, owners or agent or either of them, that he or they hold a claim against such building or improvement, setting forth the amount, and from whom the same was due." Sess. Acts, 1856-7, p. 670. On May 24, 1878, an appeal was taken from the judgment of a justice of the peace. The next term of the circuit court was the first Monday of June, which was the third day of the month. The law provided that: " All appeals allowed ten days before the first day of the term of the appellate court next after the appeal allowed, shall be determined at such term unless continued for cause." The court decided that " this appeal was allowed ten days before the June term," and demonstrated it by a method of computation which will commend itself to the learned counsel for the appellants. Bailey v. Lubke, 8 Mo.App. 57. The appellants seek to extract some comfort from the case of State v. Caldwell, 21 Mo.App. 645. It is true that the court remarked in that case that February 13 was the last day for filing; and because February 13 was sixteen days before the first day of the next term of court; the correct method of computation is asserted by counsel to be the one which excludes both the first and last day, or, in other words, that fifteen days shall intervene between the day of the allowance of the appeal and the first day of the next term of the court. But it has, evidently, been overlooked that in the Caldwell case, the thirteenth day of February fell on a Saturday, and as the office of the clerk of the court is not open on Sunday, and Monday would have been clearly too late, it followed that in order to be in time (at least fifteen days before the first day of the next term), it must have been filed on Saturday the thirteenth. In this case the indulgence of the court would be misplaced, and wholly undeserved. The record shows that this transcript was certified by the clerk of the circuit court and was ready for delivery to the appellants on June 5, 1888. In July, 1888, this court made an order that all cases on file on the twentieth of August should be docketed for hearing at the present term of this court. The transcript was withheld from the filing here from June 5, until September 10, with the result to prevent a hearing at the present term. The appeal has not been prosecuted with due diligence.

Kimball & January, against the motion.

(1) A transcript filed in the office of the clerk of the court of appeals on the thirteenth day of February, 1886 (which is not a leap-year), is filed at least, and only fifteen days before the first day of March in the same year. State v Caldwell, 21 Mo.App. 645. (2) A writ of error applied for on the second day of October is within twenty days next preceding October 22. Taylor v. McKnight, 1 Mo. 120. (3) The appeal in this case was allowed February 4, 1888. The March term of this court began on the fifth day of March. The transcript was filed in this court September 10, more than fifteen days before the October term of this court. Respondents seek to have the judgment affirmed because the transcript was not filed at least fifteen days before the March term. At the time the appeal was taken we thought, and are still of the opinion, that it was returnable to the October and not the March term of this court. Section 3717, Revised Statutes, 1879 (Amended Sess. Acts 1883, p. 122), provides that " all appeals taken thirty days before the first day of the next term, etc., shall be returnable in such next term." Also, " The appellant shall cause to be filed, etc., at least fifteen...