Fulkerson v. Houts

• Decision Date: 31 January 1874
• Citation: 55 Mo. 301
• Parties: J. M. FULKERSON, Respondent, v. GEO. W. HOUTS, Appellant.
• Court: Missouri Supreme Court

55 Mo. 301

J. M. FULKERSON, Respondent,

v.GEO. W. HOUTS, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Johnson Circuit Court.

Crittenden & Cockrell and Elliott & Blodgett, for Appellant.

Ladue & Fyke and A. W. Rogers & J. M. Shepherd, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

This was a suit brought in the Common Pleas Court of Johnson county. By an act approved March 25th, 1872, it is provided among other things, that the act approved March 12th, 1867, by which that court was established, should be repealed, and that such repeal should take effect from and after the 1st day of July, 1872; and also that all actions, suits, &c., not transferred by the act of the parties to the Circuit Court of Johnson County on or before the date last mentioned, should by operation of that act be immediately thus transferred. (Laws 1872, pp. 270, 271, §§ 2, 3, 6.)

What purports to be a bill of exceptions in this case is dated and signed July 31st, 1872, by the former judge of the Common Pleas Court, long after that court had been abolished by the force and effect of the above recited act. In addition to that, the alleged bill does not appear to have ever been filed by the clerk. Not only must the bill be signed by the judge, but be filed also “during the term of the court at which it is taken, and not after.” (Wagn. Stat., 1043, § 28; Id. 1044, § 31; West vs. Fowler, 55 Mo. 300 and cases cited.)

An examination of the sections above mentioned will conclusively show, that the bill, until both signed and filed, forms no part of the record. The term ““filed” as above employed has a broader signification than the mere indorsement to that effect, and comprehends more especially, in its proper interpretation, the entry made by the clerk on the record, by which the fact, that the bill has been allowed, is announced and appropriately evidenced. The law has in its wisdom thrown around these instruments, upon which so much depends, these safeguards of authenticity, and we will not be unmindful of its behests.

Judgment affirmed; the other judges concur.