Graham v. De Guire

• Decision Date: 05 February 1900
• Citation: 55 S.W. 151,154 Mo. 88
• Parties: GRAHAM v. DE GUIRE.
• Court: Missouri Supreme Court

55 S.W. 151

154 Mo. 88

GRAHAM v. DE GUIRE.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

BILL OF EXCEPTIONS — TIME OF FILING — APPEAL AND ERROR.

1. Where an appeal was taken on April 25th, and 90 days given in which to file a bill of exceptions, the bill filed on July 25th was one day too late, excluding the first day in computing the time in which the act is to be done, as required by Rev. St. § 6570.

2. Where the bill of exceptions is filed too late, only matters on the face of the record proper can be reviewed.

Appeal from circuit court, Madison county; James D. Fox, Judge.

Action by N. B. Graham against Allen De Guire. From a judgment for defendant, plaintiff appeals. Affirmed.

L. R. Thomason and H. S. Shaw, for appellant. R. A. Anthony, for respondent.

MARSHALL, J.

This is an action in ejectment to recover a parcel of land in Madison county, described in the petition as follows: "Beginning at the northwest corner of the lot known at the `Pottery Lot,' on the east side of Mine La Motte avenue, in the city of Fredericktown, Missouri; thence east 142 feet; thence north fifty feet; thence west with the southern boundary line of the residence premises of Allen De Guire 142 feet to Mine La Motte avenue; thence south with the east line of said avenue to the place of beginning, — containing about one-half of an acre." The petition sets out the plaintiff's right to the possession to be by a warranty deed from E. S. Graham, dated October 14, 1895, and that E. L. Graham acquired title thereto by a warranty deed from Felix J. Parkins, dated September 25, 1893, and that he (Parkins) acquired title thereto by warranty deed from M. De Guire dated March 14, 1892. The answer is a general denial, a plea of the statute of limitations, and a counterclaim for damages for libel of title. The case was tried by the court without the aid of a jury. No instructions were asked by either party, and none were given by the court. The trial resulted in a verdict and judgment for the defendant, from which the plaintiff appealed, on the 25th day of April, 1896, and he was granted leave to file his bill of exceptions within 90 days. The bill of exceptions was filed on the 25th day of July, 1896, and it is now insisted by respondent that the bill of exceptions was filed out of time, and hence there is nothing before the court for review but the record proper. Excluding the 25th day of April, the day on which the order was made, as is required in computing time by section 6570, Rev. St. 1889, the 90 days allowed expired on July 24th; that is, the remaining 5 days of April, 31 days of May, 30 days of June, and 24 days of July made together 90 full days after the order was made. The bill of exceptions was filed on July 25th, which was, therefore, one day too late. This case finds an exact parallel in the case of State v. Harris, 121 Mo. 445, 26 S. W. 558. There the defendant was, on August 9, 1893, given leave to file his bill of exceptions "sixty days from this date, in vacation, with the clerk of the court." He filed the bill on October 9th, and it was insisted by counsel and decided by this court that the 60 days expired on October 8th, and hence the bill was filed 1 day too late, and therefore only the record...