Duvall v. Mastin

• Decision Date: 09 January 1888
• Citation: Duvall v. Mastin, 28 Mo.App. 526 (Kan. App. 1888)
• Parties: JOHN C. DUVALL, Respondent, v. JOHN J. MASTIN et al., Appellants.
• Court: Kansas Court of Appeals

28 Mo.App. 526

JOHN C. DUVALL, Respondent, v. JOHN J. MASTIN et al., Appellants.

Court of Appeals of Missouri, Kansas City.

January 9, 1888

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

The case is sufficiently stated in the opinion of the court.

T. A FRANK JONES, for the appellants.

C. S OWSLEY and JAMES GIBSON, for the respondent.

I.There is no bill of exceptions in this case that this court will pass upon.The cause was tried at the October, 1886 term of the circuit court, it being January 3, 1887.The motion for a new trial was filed at the same term, it being January 4, 1887.At the January, 1887, term of court, it being January 15, 1887, the motion for a new trial was overruled, and bond and affidavit for appeal filed, and appeal allowed.At the same January, 1887, term, the same being March 26, 1887, the court made an order of record allowing appellants till May 1, 1887, to file their bill of exceptions.The bill of exceptions was filed May 11, 1887.It was not filed during the term at which the motion for a new trial was overruled, nor in the term prescribed by the order entered of record by the court at said term.Hurt v. King,24 Mo.App. 593, 597;Ellis v. Andrews,25 Mo. 328;Dale v. Patterson,63 Mo. 98;West v. Fowler,59 Mo. 40;Ruble v. Thomasson,20 Mo. 263;Wilcoxson v. McBride,23 Mo. 404;Sutton v. Streit,21 Mo. 158;State v. McO' Blenis,21 Mo. 273;Farrar v. Finney,21 Mo. 571.

II.The record proper shows no consent whatever of respondent that the bill of exceptions might be filed May 11, 1887.The consent referred to by appellants in their additional brief was endorsed on the bill of exceptions, and was simply a statement as to the correctness of the bill--that and nothing more.It is but the usual statement made by attorneys on a bill of exceptions for the information of the circuit judge.Ruble v. Thomasson,20 Mo. 263;West v. Fowler,55 Mo. 300;Ellis v. Andrews,25 Mo. 327;West v. Fowler,59 Mo. 40.

T. A. F. JONES, in reply.

I.The authorities cited by the attorneys for respondent in support of their objection to the bill of exceptions hold that the bill of exceptions cannot be filed after the date fixed by the circuit court except by agreement of parties, and some of them hold that this agreement must appear in the record.But in this case, as appears from the copy of the record on the preceding page, there not only was such an agreement, but it is a part of the bill of exceptions itself, and thus a part of the record.Rev. Stat., sec. 3639.

II.The following affidavit, on file in this court, is here copied to show, if it is admissible to do so, why the bill of exceptions was not filed in the time fixed by the circuit court:

" JOHN C. DUVALL, Respondent,

vs.

JOHN J. MASTIN et al., Appellants.

T. A. Frank Jones, being duly sworn, on oath says that he prepared the bill of exceptions in the above entitled cause as attorney for the appellants, and had it ready and submitted it to the attorneys for respondent before May 1, 1887; that the latter had it in their possession for a considerable length of time, extending beyond May 1, 1887, on the agreement, as affiant understood, that they would consent to its being filed after that time; that, in fact, they did so consent, after suggesting some alterations in the bill of exceptions, which affiant accepted.Affiant is further confirmed in his positive recollection about these matters by the fact that the original bill of exceptions shows that it was made ready for the signature of the judge of the circuit court on March 26, 1887, that date having been marked out and May 11, 1887, having been substituted, when it was actually signed.

T. A. FRANK JONES.

Subscribed and sworn to before me this second day of December, 1887.

F. C. FARR,

Clerk K. C. Court of Appeals,

By S. K. FARR, D. C."

PHILIPS P. J.

This is an action founded on a contract for the sale of certain real estate in Kansas City, Missouri.The plaintiff recovered judgment in the lower court, from which defendants have appealed.Respondent makes the point that there is no bill of exceptions in the record which this court can consider.The record shows that this cause was tried at the October term 1886, of the circuit court, it being on the third day of January, 1887.On the fourth day of January, 1887, the motion for a new trial was filed.This motion went over to the next term of court.On January 11, of the January term, 1887, the motion for new trial was overruled by the court.On the twenty-sixth day of March following, the court made an order allowing the defendants to file bill of exceptions on or before the first day of May following, which was during the next term of court.The record shows that this bill of exceptions was not signed by the judge and filed until the eleventh day of May, 1887.On this state of the record the bill of exceptions was confessedly filed out of time, and as such stands as no bill of exceptions.Kansas City to use v. Allen,28 Mo.App. 132.Appellants seek to avoid this effect of their delay, by an affidavit filed herein by their attorney, which states, in substance, that he prepared the bill of exceptions within the prescribed time, and handed it to the opposing attorneys for inspection; that they retained the same in their possession until after the first day of...