Cooper v. Maloney

• Decision Date: 21 May 1901
• Citation: 63 S.W. 372,162 Mo. 684
• Parties: COOPER v. MALONEY et al.
• Court: Missouri Supreme Court

63 S.W. 372

162 Mo. 684

COOPER v. MALONEY et al.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

APPEAL—BILL OF EXCEPTIONS—SIGNATURE— DEFECT—NEW TRIAL—MOTION—VALIDITY.

1. Where a bill of exceptions was not signed, a signing of the findings of fact under the hand and seal of the judge, three months before the bill of exceptions was ready to file, cannot be considered as a signing of the bill, and hence did not cure the defect.

2. A statement, written in the transcript after the close of the term, that defendant filed a bill of exceptions signed by the judge, was not sufficient to cure a defect arising from the absence of the judge's signature to the bill.

3. Where the motion for a new trial was copied in the record subsequent to the judge's signature to an alleged bill of exceptions, and the motion was not referred to in the alleged bill, it was not incorporated therein and could not be considered.

Appeal from circuit court, Grundy county; P. C. Stepp, Judge.

Action by H. M. Cooper against Joseph B. Maloney and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Irwin & Page, J. C. Hughes, and J. M. Swallow, for appellants. Wattenbarger & Bingham, for respondent.

SHERWOOD, P. J.

Ejectment for lands in Sullivan county. Answer filed by Susan Wright in nature of general denial, and also alleging that her name is Mary Susan Maloney, and not Susan Wright, and that she is the wife of Joseph B. Maloney. Joseph B. Maloney in his answer also asserted that Susan Wright's name was as stated in her answer. The answer also contained a general denial, as well as an equitable defense. To the answer of Joseph B. Maloney plaintiff filed a replication containing equitable matters and asking for affirmative relief. The cause went to a hearing, with the result that the court found the facts in issue in favor of plaintiff and against defendants, and gave judgment and decree for plaintiff. At the end of the finding of facts aforesaid appears this statement: "Given under my hand and seal this 27th day of April, 1897. P. C. Stepp, Judge of the Circuit Court of Grundy County within and for the 3rd Judicial Circuit of Missouri. [Seal.]" This signing of the finding of facts cannot be regarded as a signing of the bill of exceptions, and this is apparent for more reasons than one. Such signature is not accompanied by the formula which usually attends a judge's signature when subscribed to a bill. The transcript of the record, subsequent to the signing of the judge's...