George Knapp R. E. & B. Ass'n v. American R. Transit Co.

• Decision Date: 18 March 1895
• Citation: 30 S.W. 155,127 Mo. 499
• Court: Missouri Supreme Court
• Parties: GEORGE KNAPP REAL-ESTATE & BUILDING ASS'N v. AMERICAN REFRIGERATOR TRANSIT CO.

30 S.W. 155

127 Mo. 499

GEORGE KNAPP REAL-ESTATE & BUILDING ASS'N v. AMERICAN REFRIGERATOR TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

March 18, 1895.

BILL OF EXCEPTIONS — TIME FOR FILING — REVIEW ON APPEAL.

Where the record shows that the bill of exceptions was filed at a term subsequent to that in which the appeal was taken, no leave being asked or given of record for such filing, it will be ignored upon appeal, though the opposing counsel has not moved to strike it out.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by the George Knapp Real-Estate & Building Association against the American Refrigerator Transit Company to enforce the specific performance of a contract to accept a lease. From a verdict for the plaintiff, defendant appeals. Affirmed.

Pollard & Werner, for appellant. Vernon Knapp and Thos. M. Knapp, for respondent.

GANTT, P. J.

This appeal is certified, in compliance with rule 14 of this court (16 S. W. vi.), by filing 10 uncertified copies of the record, indexed as required. The action was commenced in the circuit court of the city of St. Louis on the 16th day of January, 1892, and an amended petition was filed April 9, 1892. There were two counts in the petition, and, under the ruling of the court, plaintiff elected to proceed and stand on the first count. This count was an action for specific performance of a contract to accept a lease of the third story of a five-story building situated on the northeast corner of Third street, in St. Louis, for a term of two years, and damages for breach thereof. The answer was a general denial and plea of the statute of frauds. The cause was tried to a jury before Judge Valliant, and resulted in a verdict for plaintiff for $3,965.40, at the April term, 1893. The record discloses that the verdict was rendered on Wednesday, April 26, 1893. On Friday, April 28, 1893, a motion for a new trial was filed. This motion was overruled May 22, 1893. On May 31, 1893, an affidavit for appeal was filed, and an appeal granted to this court, and an appeal bond was filed and approved. No other step was taken at the April term, 1893. By virtue of the laws governing the circuit court of the city of St. Louis, the April term, 1893, lapsed, by operation of law, on June 3, 1893, unless adjourned sooner by order of the court. Rev. St. 1889, p. 2147, § 9. This record discloses that "afterwards, at the June term, 1893, of said court, and on June 13, 1893, the defendant filed its bill of exceptions." No leave was asked or given of record to file this bill of exceptions at a subsequent term. Counsel for respondent have not challenged this bill of exceptions on this ground, and we are confronted with the question, whether we have the right to consider exceptions...