City of Grant City, Missouri v. Simmons
| Decision Date | 25 November 1912 |
| Citation | 151 S.W. 187,167 Mo.App. 183 |
| Parties | CITY OF GRANT CITY, MISSOURI, Respondent, v. EFFIE SIMMONS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from North Circuit Court.--Hon. Wm. C. Ellison, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
J. E Engle and James Ewing for appellant.
Edward Kelso and DuBois & Miller for respondent.
--This cause originated in the police court of Grant City on the complaint of the city attorney charging defendant with disturbing the peace of certain persons named in the complaint in violation of an ordinance which provides
A trial in the circuit court where the case was taken by appeal resulted in a judgment of conviction which assessed a fine of fifty dollars and costs against defendant. This judgment was rendered October 15, 1910, and on the same day defendant's motion for a new trial was overruled and an order was made allowing her an appeal to this court and giving her "until the last day of next term of this court to file her bill of exceptions." The next term of that court provided by law should have begun on the first Monday of February, 1911, and the next term after that term on the second Monday in May, 1911. Owing to the absence of the judge who was holding court in another county the February term was not held and no session of court was held in that county until the May term. The sheriff of the county convened the court on the first day of the February term (Feb. 5) and adjourned from day to day until the third day (Feb. 8) when he adjourned the court to the next regular term. Since the February term had no "commencement" within the meaning of that term, as employed in Sec. 3869, R. S. 1909, and as there was but one judge of that court and he was unable to attend at that term, the sheriff had no power under the section of the statute just cited to open court and adjourn from day to day until the evening of the third day and the only authority he possessed in such case was on being notified by the judge of his inability to attend, to make proclamation at the court house door adjourning court until the next regular term. Respondent contends that inasmuch as appellant's bill of exceptions was not filed on or before February 8, which respondent treats as the last day of the February term, and no order of extension was made in that time, the bill which was signed and filed February 25 was filed out of time and cannot be considered as a part of the record. We held the bill was filed in the time specified in the original order and that appellant was not required to procure an extension of time.
The order giving appellant "until the last day of the next term to file her bill of exceptions" had reference not to any particular day of the year but to a certain day in the next regular term of the court and by the expression "the next regular term" is meant a term at which the court was lawfully opened for the transaction of business and not to a time at which it could and should have been commenced but was not lawfully opened because of the absence of the judge.
The February term of the court had neither beginning nor ending, neither a first nor a last day. It was abandoned as the law provided it should be in such event, and the next term, within the meaning of the order granting leave to file a bill of exceptions, was the May term, since that was the first regular term at which the court was opened for the transaction of business. Notwithstanding the difference in the facts of the two cases, this case, in principle, is the same as that of State v. Tevis, 234 Mo. 276, 136 S.W. 339. In that case the appellant was given until the second day of the April, 1909, term of the circuit court to file his bill of exceptions. In the meantime the Legislature changed the date of holding that term from April to May. The bill of exceptions was not filed until the second day of the May term. The Supreme Court held it was filed in time, though it would have been out of time had the next term been held in April. The bill of exceptions is properly before us.
Before passing to the case on its merits we will dispose of a motion of respondent to dismiss the appeal. It appears from affidavits filed by respondent that after the rendition of the judgment the case was compromised and settled by the parties on the following terms: Respondent agreed to remit the fine of fifty dollars and appellant agreed to dismiss her appeal and pay the costs. It is not claimed that appellant personally participated in the settlement and the antecedent negotiations, but that she was represented by her attorney of record and by her father who had managed and conducted her defense as her agent. Further it appears that respondent had prosecuted the father of appellant for an alleged violation of one of its ordinances; that a trial of the case had resulted in a judgment of acquittal from which respondent had appealed and that at the time of the settlement of the present case that case also had been compromised and settled in a way to deprive respondent of the right to prosecute the appeal or to prosecute another action on account of the offense. Appellant has filed in this court the affidavits of herself, her father and her attorney in which all of the affiants state that neither the father of appellant nor her lawyer had any authority from her to compromise and settle the cause and the last named affiants deny that they made any agreement with respondent for the settlement of the case in hand or for the dismissal of the appeal.
Under the statute (Sec. 2083, R. S. 1909) an appellate court, in the disposition of causes coming to it on appeal or writ...
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