Berry v. Leslie

• Decision Date: 04 May 1908
• Citation: 110 S.W. 685,131 Mo. App. 236
• Parties: BERRY et al. v. LESLIE.
• Court: Missouri Court of Appeals

110 S.W. 685

131 Mo. App. 236

BERRY et al. v.LESLIE.

Kansas City Court of Appeals. Missouri.

May 4, 1908.

1. APPEAL AND ERROR — RECORD — MATTERS TO BE SHOWN — MAKING OF BILL OF EXCEPTIONS — ABSTRACT.

Where an appeal is taken by an abstract in lieu of a transcript, appellant must show affirmatively in his abstract that his bill of exceptions was properly taken and filed.

2. EXCEPTIONS, BILL OF — SIGNING AFTER TERM BY SPECIAL JUDGE.

Where a special judge is elected to preside at the trial of a particular case, his authority over that case continues until its final disposition in the court, and, if time for filing a bill of exceptions be extended beyond the term at which the case is tried, the special judge may authenticate the bill, he being as to that particular case the judge of the court for all purposes; but, where he is elected to hold a term or part of a term for the transaction of all business which may come before the court, he ceases to be judge for any purpose at the end of that term, and hence, where the special judge who tried a case had been elected to hold a part of a term of court, and signed a bill of exceptions in the case after the term, the bill was not properly authenticated.

3. SAME.

Under the express provisions of Rev. St. 1899, § 731 (Ann. St. 1906, p. 726), the bill of exceptions should have been signed by the special judge's successor in office.

Appeal from Circuit Court, Jackson County; Frank F. Rozzelle, Judge.

Action by Thomas Berry and others as copartners against Leo N. Leslie.Judgment for plaintiffs, and defendant appeals.Affirmed.

Wm. J. Morse, for appellant.James G. Smith, for respondents.

JOHNSON, J.

Plaintiffs sued defendant on an account before a justice of the peace, and obtained judgment.Defendant appealed to the circuit court of Jackson county, where the cause was tried at the April term, 1906, before Hon. F. F. Rozzelle, who had been elected as special judge to hold a part of that term on account of the illness of Hon. William B. Teasdale, the regular judge.A jury being waived by the parties the cause was submitted to the court, judgment was rendered in favor of plaintiffs, and defendant appealed.

The record discloses that on the 6th day of October, 1906, and during the said April term, an order was made allowing the appeal and granting defendant leave to file his bill of exceptions "within 10 days after the adjournment of said April term, 1906"; and, further, that the bill was signed and filed on the 16th day of October, which was after the close of the April term, but within the time stated in the order.It was signed by Judge Rozzelle but not by Judge Teasdale.All of the errors assigned relate to matters occurring at the trial, and, as the appeal was brought here by the short form, it was incumbent on defendant to show affirmatively in his abstract of record that his bill of exceptions was properly taken and filed.Quarry Co. v. Construction Co., 72 Mo. App. 478;Hohstadt v. Daggs, 49...