Bick v. Williams

• Decision Date: 10 May 1904
• Citation: Bick v. Williams, 181 Mo. 526, 80 S.W. 885 (Mo. 1904)
• Parties: BICK, Appellant, v. WILLIAMS
• Court: Missouri Supreme Court

80 S.W. 885

181 Mo. 526

BICK, Appellant, v. WILLIAMS

Supreme Court of Missouri, Second Division

May 10, 1904

Appeal from Monroe Circuit Court.-- Hon. David H. Eby, Judge.

Affirmed.

R. B Bristow for appellant.

Bodine & Boyd and T. P. Bashaw for respondent.

GANTTP. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This is an action of ejectment commenced in Monroe county.

From a judgment in favor of defendant, plaintiff appeals.

The appeal is brought to this court by certificate of judgment and order granting appeal.

The abstract filed contains no copy of the record entries.It does not show when the petition, answer or reply was filed.It does contain copies of those pleadings.But for the certificate of judgment and order granting the appeal filed with the clerk there would be no part of the record proper before us.We ruled in State ex rel. v. Smith,172 Mo. 446, 72 S.W. 692, and in State ex rel. v. Smith,172 Mo. 618, 73 S.W. 134, that a failure to set out a judgment in the abstract of record where the certificate had been duly filed would not justify a dismissal of the appeal but we have also uniformly ruled that recitals in a bill of exceptions will not supply the abstract of the record proper.[State v. Harris,121 Mo. 445, 26 S.W. 558;Walser v. Wear,128 Mo. 652, 31 S.W. 37.]

We have always ruled that the record proper must, if in term time, show the filing of the bill of exceptions, and if leave be given to file the bill in vacation, the minute of the clerk in vacation must show the filing within the time allowed; that the recital in the bill of exceptions can not supply this defect, as in the very nature of the casethe bill of exceptions is no part of the record until signed and filed by leave of the court.[Ricketts v. Hart, 150 Mo. 64, 51 S.W. 825.]

Now, conceding to plaintiff and appellant all the liberality extended in State ex rel. v. Smith,172 Mo. 446, 72 S.W. 692, and treating the certificate as part of his abstract, it shows on its face that the time for filing the bill of exceptions was extended only to September 1, 1900.The certificate of the judge to the bill of exceptions discloses that it was filed on September 20, 1900, or twenty days after the time allowed by the court.

It is just to state that at the foot of the bill of exceptions, and apparently a part of it, there is this statement "Plaintiff was given until October 1, 1900, to file bill of exceptions."There is no statement when or by whom this leave was given, whether by the court in term time, or by the judge in vacation; whether before the original leave given by the court to file "on or before September 1, 1900," had expired, or after that date or by the stipulation of counsel filed in the clerk's office.It does not purport to be the abstract of a record made on a certain day, or of a written extension granted by the judge in vacation and filed with the clerk or of the stipulation of counsel made on a certain day.It is directly contradicted by the record entry which limited the time for filing to September 1, 1900.In this condition of the record we must...