O'Bannon v. St. Louis & G. Ry. Co.

• Decision Date: 12 April 1904
• Citation: 80 S.W. 321,106 Mo. App. 316
• Court: Missouri Court of Appeals
• Parties: O'BANNON et al. v. ST. LOUIS & G. RY. CO.

80 S.W. 321

106 Mo. App. 316

O'BANNON et al. v. ST. LOUIS & G. RY. CO.

St. Louis Court of Appeals. Missouri.

April 12, 1904.

TRESPASS—STATUTES—COMPLAINT—BILL OF EXCEPTIONS—FILING—TIME—EXTENSION —JURISDICTION.

1. Under Rev. St. 1899, § 728, permitting the filing of a bill of exceptions during the term, or within such time thereafter as the court may allow, which may be extended for good cause shown, where the time for filing a bill of exceptions, as extended, expired before a final application for further time was made, the court had no jurisdiction to grant such application.

2. It is the duty of the appellate court to consider errors patent on the face of the record without a bill of exceptions.

3. A petition averring that plaintiffs were on the dates specified lawfully possessed of realty described, and that at divers times indicated, defendant, through its agents, entered and carried away sand therefrom, to plaintiffs' damage, but which did not allege that defendant had no interest therein, though it stated a sufficient cause of action at common law, did not entitle plaintiffs to recover treble damages under Rev. St. 1899, § 4572, providing that, if any person shall carry away any gravel or other substance or material being a part of the realty, in which he has no interest, lying or being on land not his own, he shall pay the party injured treble the value of the property taken away.

Appeal from Circuit Court, Dunklin County; Jas. L. Fort, Judge.

Action by Welton O'Bannon and others against the St. Louis & Gulf Railway Company. From a judgment in favor of plaintiffs, defendant appeals. Dismissed.

Moses Whybark, for appellant. Ely & Kelse, for respondents.

REYBURN, J.

This appeal was perfected in abbreviated form permitted by the statute, and from the appellant's abstract of record must be gathered the times of the events constituting the history of the proceedings had and steps taken. From such source of information it is disclosed that at the regular May term the motion for new trial was overruled by the circuit court of Dunklin county on the 22d day of May, 1903, and on the same day an affidavit for appeal was presented, the application for appeal granted, and an appeal allowed to this court. On the same day, by order duly made, the defendant was given 60 days in which to perfect and file its bill of exceptions, which was extended 60 days further on the 30th day of June following. On the 16th day of September, 1903, an order was made and entered of record extending the time of the defendant to file its bill of exceptions again 30 days. On the 26th day of September. 1903, the bill of exceptions was filed, bearing date and appearing to have been signed by the trial judge on the 21st of September preceding. Respondents have filed a motion to dismiss the appeal, assigning that the time for filing the bill of exceptions expired August 30th, and the lower court was without authority to extend the time for filing the bill of exceptions after the time for filing had expired.

The statute (Rev. St. 1899, § 728) permits the filing of the bill at the time at which the exceptions are taken, or during the term of the court at which they are taken, or within such time thereafter as the court may allow, which time may be extended by the court or judge in vacation for good cause shown. The time granted defendant by the additional extension of 60 days made June 30th had expired before September 16th, when the final extension of time was sought to be made, and the trial judge was without further power to extend by this last order the time for filing the bill of exceptions, as the Supreme Court in a series of decisions has declared. State v. Schuchmann, 133 Mo. 111, 33 S. W. 35, 34 S. W. 842; State v. Simmons, 124 Mo. 443, 27 S. W. 1108; State v. Seaton, 106 Mo. 208, 17 S. W. 169; State v. Clark, 119 Mo. 426, 24 S....