Ellis v. Andrews
| Decision Date | 31 July 1857 |
| Citation | 25 Mo. 327 |
| Parties | ELLIS, Respondent, v. ANDREWS, Appellant. |
| Court | Missouri Supreme Court |
1. A bill of exceptions cannot, except by consent, be allowed and signed subsequently to the term at which the trial is had.
2. Where it is agreed that the bill of exceptions may be allowed and filed within ten days after the end of the term, and it is not allowed and signed within the ten days, it cannot be afterwards allowed and signed.
Appeal from Cooper Court of Common Pleas.
The facts sufficiently appear in the opinion of the court.
Stephens & Vest, for appellant, cited Stephen on Pleading, 160; 3 Bouv. Inst. 261; Chitty Pl. 518; Wood v. Steamboat Fleetwood, 19 Mo. 529; Swartz v. Chappel, 19 Mo. 304; Rucker v. Eddings, 7 Mo. 115; Brighter v. Cooner, 18 Mo. 347; Foster v. McO'Blenis, 18 Mo. 88.Douglass and Hayden, for respondent.
The bill of exceptions should have been presented and signed in term, or ten days thereafter, as counsel agreed it should be. The bill of exceptions was not presented and signed during the term, nor within ten days thereafter, and was signed against the consent of respondent. The bill of exceptions not having been presented and signed in proper time, should be stricken from the record, and the judgment below affirmed. (Farrar v. Finney, 21 Mo. 569.)
It has long been settled that a bill of exceptions must be signed during the term at which the cause is tried. This is not only the practice here, but also in other states. In England, where the statute first allowing a bill of exceptions to the parties to a suit had its origin, it is held that courts are not bound to seal a bill of exceptions tendered at the succeeding term of the court. (Wright v. Sharp, 1 Salk. 288; Sikes v. Ransom, 6 Johns. 279; 9 Johns. 346; Pomeroy v. Selmes, 8 Mo. 132.) The rule has been so far departed from that it is permitted to sign a bill of exceptions at a period subsequent to the term at which the trial takes place, when the consent of the parties is given to such a course, and that consent is made a matter of record. (Pomeroy v. Selmes, 8 Mo. 732.)
In the case before us it was agreed that the bill of exceptions should be made out and filed within ten days from the end of the term. It was not done within the time agreed upon, but afterwards, and against the consent of the plaintiff. It is now proposed by affidavits to show why the bill of exceptions was not signed within the stipulated time. It is obvious that such a course would be a departure from the practice, which requires that when a bill of exceptions is not signed during the term at which the trial takes place, it must appear by the record that consent was given that it should be signed at a subsequent period. This bill of exceptions is signed after the trial term, and against the consent of the party to be affected by it. It is easy to see the consequences...
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