Barham v. Shelton

• Decision Date: 31 May 1909
• Citation: 119 S.W. 1089,221 Mo. 66
• Parties: BARHAM v. SHELTON.
• Court: Missouri Supreme Court

119 S.W. 1089

221 Mo. 66

BARHAM v. SHELTON.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. APPEAL AND ERROR (§ 628)—ABSTRACT AND BRIEF—FAILURE TO FILE IN TIME—EXCUSE.

Where the cause of failure to file appellant's abstract and brief until two days after the time allowed was the sickness of counsel for some time prior to the preparation of the abstract and brief, and the fact that the printer was much crowded with work, the delay will be excused.

2. APPEAL AND ERROR (§ 590)—SUPPLEMENTARY ABSTRACTS.

If an original abstract of record is so faulty in stating material matters of record as to authorize the sustaining of suggestion to dismiss the appeal, no leave should be granted to file a supplementary abstract after the adverse party has served his brief or other writing calling attention to the defects.

3. APPEAL AND ERROR (§ 586)—ABSTRACTS— RECITALS.

The first three pages of an abstract comprised a statement of the case followed by a heading "Abstract of Record" under which appeared an abstract of the petition, and the answer and reply in full. Under the next heading, "The Following is an Abstract of the Evidence," was the evidence and declarations of law, after which came the judgment and the recital: "On December 14, 1905, the appellant filed motion for new trial, omitting caption, is as follows" (setting out the motion for new trial in full). On the next page were the recitals that "on May 25, 1906, to which the same is continued, the court doth overrule said motion, to which appellant then and there excepted," that on May 21, 1906, appellant filed application and affidavit for appeal, which was granted, and appellant given until October 1, 1906, to file the bill of exceptions, that by extensions by the court and agreements of counsel the time was continued to February 1, 1908, and on January 27, 1908, appellant presented her bill of exceptions to the trial judge, and it was signed, filed, and made a part of the record. Following these recitals was the assignment of errors, brief, argument, and index. Held, that the abstract was fatally defective, as there was nothing therein to distinguish record proper from matters of exceptions which are preserved in bills of exceptions.

4. APPEAL AND ERROR (§ 586)—ABSTRACT— SUFFICIENCY.

An abstract of record relating to a motion for new trial must show from the record proper, not only the filing of the motion, but the ruling of the court thereon.

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

Action by Ada Barham against W. F. Shelton, Jr. Judgment for defendant, and plaintiff appeals. On motion to affirm judgment. Motion granted.

John W. Scobey, for appellant. W. S. C. Walker, for respondent.

GRAVES, J.

This cause, was on our docket for hearing April 21st, but was not reached until April 23d. March 31st, the respondent lodged in this court his motion to affirm the judgment for divers reasons therein assigned, as follows: (1) That the abstract of record and brief of appellant had not been served and filed 30 days before the date set for hearing; and (2) that there are numerous failures to comply with the statute and our rules in the preparation of the abstract of record, which failures are pointed out in the motion. On April 23d, the day of hearing, appellant tendered for filing an additional abstract of the record, but the same was not then permitted to be filed, the court concluding to take such tender and the motion to affirm with the case, and they were so taken. Respondent objects to the tendered amended abstract of record, and insists on his motion to affirm, a copy of which motion to affirm with brief thereon, together with notice of respondent's intent to file the same, were served upon appellant's counsel on March 29, 1909. By affidavits, counsel for appellant seeks to excuse the delay of two days in serving and filing his abstract of record and brief. Such are the issues upon the motion to affirm and leave to file additional or amended abstract.

1. The affidavits disclose that counsel for appellant had been unwell for some time prior to the preparation of the abstract and brief, and the printer was much crowded with work. The full details are unnecessary; suffice it to say that upon this point the showing is sufficient to excuse the two days' delay, and this point in the motion to affirm is not well taken.

2. The amended abstract of record was not tendered until the day of hearing in this court. We had occasion to review the authorities in this state upon this question in the recent case of Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638. After quoting from Everett v. Butler, 192 Mo., loc. cit. 569, 91 S. W. 890, we there said: "The foregoing seems to be the rule as to supplementary abstracts of record. To say the least, they should not be filed without leave of court, and if so filed will not be considered. We will add, further, that if for any reason the original is so faulty in stating material matters of record as to authorize the sustaining of suggestion to dismiss...