Caldwell v. Hawkins
| Decision Date | 31 July 1870 |
| Citation | 46 Mo. 263 |
| Parties | ROBERT CALDWELL, Respondent, v. MADISON C. HAWKINS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Fourth District Court.
J. J. Louthan, for respondent.
J. G. Blair, for appellant.
The plaintiff obtained judgment in the Circuit Court, and the defendant appealed. He failed to file his transcript at the next term of the District Court, and did not file it until less than fifteen days from the commencement of the second term. But during said term the respondent presented a transcript and obtained a judgment of affirmance of the one obtained by him in the Circuit Court. The defendant appeared, and resisted the motion to affirm upon the ground that he had used due diligence to obtain and file his transcript, but only showed that he and his attorney had spoken to the circuit clerk several times about making it out and sending it up; that he promised to do so, and that they relied upon the clerk to send it up.
The statute imposes upon the appellant the duty, in civil cases, of causing the transcript to be filed at least fifteen days before the term at which the appeal is returnable. It is a personal duty imposed upon the appellant, which he can not transfer to the clerk; and, for his failure, it becomes the duty of the District Court, upon motion of respondent, to affirm the judgment. The provisions of the statute are plain and imperative, and can not be dispensed with.
The judgment of the District Court is affirmed.
The other judges concur.
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State ex rel. Gilman v. Robertson
...court? This court has repeatedly held that that duty rests upon the appellant and that he cannot shift it upon the clerk. [Caldwell v. Hawkins, 46 Mo. 263; State Dempsey, 168 Mo.App. 298, 300, 153 S.W. 1064; Secs. 2047, 2048 and 2049, R. S. 1909; Rule 28, Supreme Court, Oct. 1909; Crawford ......
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State v. Robertson
...court? This court has repeatedly held that that duty rests upon the appellant, and that he cannot shift it upon the clerk. Caldwell v. Hawkins, 46 Mo. 263; State v. Dempsey, 16S Mo. App. 300, 153 S. W. 1064; Sections 2047, 2048, and 2049, R. S. 1909; Rule 28, Supreme Court (169 S. W. xi) Oc......
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Beckner v. McLinn
... ... The transcript ... was not filed until March 22, 1889, and for this reason the ... appeal should be dismissed. Caldwell v. Hawkins, 46 ... Mo. 263; Dean v. Jones, 27 Mo.App. 468; ... McCaffery v. Railroad, 31 Mo.App. 340. (7) The court ... should dismiss the appeal ... ...
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State ex rel. Meyer v. Turnbow
... ... Secs. 1027, 1028, R. S. Mo. 1929; ... Kamerick v. Castleman et al., 21 Mo.App. 587; ... McCaffery v. Railroad, 31 Mo.App. 340; Caldwell ... v. Hawkins, 46 Mo. 263; Hofstatter v. Cantrell, ... 180 S.W. 435; State ex rel. v. Robertson, 264 Mo ... 661, 175 S.W. 610; Stogsdill v. Ry ... ...