Everett v. Butler

• Decision Date: 03 January 1906
• Citation: 91 S.W. 890,192 Mo. 564
• Parties: EVERETT, Appellant, v. BUTLER
• Court: Missouri Supreme Court

91 S.W. 890

192 Mo. 564

EVERETT, Appellant, v. BUTLER

Supreme Court of Missouri, Division Two

January 3, 1906

192 Mo. 564 at 566.

Original Opinion of January 3, 1906, Reported at: 192 Mo. 564.

Motion for rehearing denied.

GANTT J. Burgess, P. J., and Fox, J., concur.

OPINION

ON MOTION FOR NEW HEARING.

GANTT J. --

The plaintiff has filed a motion for rehearing, and for an order setting aside the judgment dismissing the appeal in this cause, and for grounds thereof assigns the following reasons because the appellant on the 13th day of October, three days before this cause was docketed for hearing and after receiving the brief of the respondent in which plaintiff's abstract of record was assailed as utterly insufficient, had served on the defendant what plaintiff denominates an additional abstract of the record, in which the plaintiff had interlined, in writing, exceptions to the overruling of the motion for new trial and to the refusal of certain declarations of law asked by the plaintiff, and also appended a printed sheet, containing a digest of the petition and answer and the order overruling the motion for new trial, the affidavit for appeal and the order made on August 26, 1902, giving plaintiff leave to file a bill of exceptions on or before November 26, 1902, and a subsequent order extending the time to file said bill of exceptions on or before December 15, 1902.

Plaintiff now insists that the court erred in dismissing her appeal and in not considering her additional abstract of record offered to be filed in the circumstances above noted.

Section 813, Revised Statutes 1899, provides that when an appeal is prosecuted to this court by what is known as the short method, the appellant shall "within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court, file printed abstracts of the entire record of said cause in the office of the clerk of such appellate court, and within such time, deliver a copy of said printed abstract to the respondent or defendant in error." Rule 11 of this court provides that "in those cases where the appellant shall, under the provisions of section 2253 Revised Statutes of 1889 (now sec. 813, R. S. 1899), file in the court a copy of the judgment, order or decree, in lieu of the complete transcript, he shall deliver to the respondent a copy of his abstract at least thirty days before the cause is set for hearing, and shall in like time file ten copies thereof with the clerk of this court." Rule 13 requires that "the abstracts mentioned in rules 11 and 12 shall be printed in fair type, and shall be paged, and shall have a complete index at the end thereof, and shall set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision." It will thus be seen that the rules of this court made in pursuance of the statute require the appellant or plaintiff in error to deliver to the respondent a copy of his abstract at least thirty days before the cause is set for hearing, and in like time file ten copies thereof with the clerk of this court. But it is now contended by the appellant that he may ignore these rules and file an abstract within three days of the date of the hearing, and that such abstract must be filed by the clerk "either with or without the permission of the court," and that it is obligatory upon this court to accept the same. Such insistence is in the teeth of the rule, and if allowed would involve the court and opposing counsel in utter confusion. The rules and the statute upon which they are based are devised for the orderly disposition of the causes in this court, and to the end that both counsel and the court may be fully advised of the record upon which an opinion is sought in this court. The position of counsel is utterly untenable. But it is said that the...