Hurt v. King

• Decision Date: 08 February 1887
• Parties: WILLIAM H. HURT, Respondent, v. WILLIAM R. KING, Appellant.
• Court: Kansas Court of Appeals

24 Mo.App. 593

WILLIAM H. HURT, Respondent, v. WILLIAM R. KING, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1887

APPEAL from Saline Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

The case is stated in the opinion.

DAVIS & WINGFIELD, for the respondent.

Respondent insists that there is no bill of exceptions filed in this case except as to such orders and entries as were made at the October term, 1885, of the Saline county circuit court, and the only entry made at that time was an order overruling the motion in arrest of judgment. The case was tried at the June term, 1885, and a motion for a new trial was filed and overruled at that term. And on the third day of July, being the last day of said June term appellant asked and obtained leave to file a bill of exceptions sixty days after said term, which bill of exceptions was not filed within said time; but at the October term, upon the overruling of the motion in arrest of judgment, appellant again obtained leave to file a bill of exceptions on or before the first of December 1885, in vacation, and did file the bill of exceptions now before the court on the twenty-first day of November, 1885 and included in the same all the exceptions taken by the appellant at the June term. Rev. Stat., sect. 3636; Sess. Acts, 1885, p. 215; Dale v. Patterson, 63 Mo. 98; West v. Fowler, 59 Mo. 40.

H. CLAY EWING and GEO. L. HAYS, for the appellant.

The point made as to the bill of exceptions is settled beyond peradventure by the following cases, taken together: Henze v. Railroad, 71 Mo. 636; Riddlesbar ger v. McLaine, 38 Mo. 636, and 160; Gelshop v. Felts, 50 Mo. 428; Peach, Adm'r, v. Patrick, 53 Mo. 251; State v. Dodson, 72 Mo. 283; Carter v. Prior, 78 Mo. 222; Randolph v. Mauk, 78 Mo. 468. The matter is settled, so far as relates to motion for new trial, by the case in 38 Mo. 636 and 160, which is affirmed by that in 71 Mo. 636. The case in 50 Mo. 428, shows that there is no final judgment until the motion in arrest is disposed of. The case in 53 Mo. 251, shows that the motion in arrest must be included in the bill of exceptions, and hence that the bill of exceptions could not be completed until the motion in arrest was overruled, and the cases in 72 Mo. 283, and 78 Mo. 222, decide that the bill may be filed as well after as before the appeal is allowed, which could not be until the motion in arrest was disposed of. The case of Randolph v. Mauk (78 Mo. 468), treats the motions for new trial and in arrest as standing on the same footing with reference to appeal and its incidents.

HALL J.

This was an action for forcible entry and detainer. The trial, on appeal, in the circuit court, was had at the June term, 1886. After verdict in favor of plaintiff, defendant filed, in due time, motions for new trial and in arrest of judgment. The motion for new trial was overruled at said term, but the motion in arrest of judgment was not acted upon.

The defendant obtained leave of record to file a bill of exceptions in vacation, but did not file it. At the next term the court overruled the motion in arrest of judgment. The defendant then again obtained leave to file a bill of exceptions in vacation, and filed said bill in accordance with said leave.

The question is, did the bill of exceptions so filed constitute a bill of exceptions in so far as concerns the exceptions taken to the action of the court during the trial of the cause?

By our practice act (Rev. Stat., sect. 3635), it is provided: " Whenever, in the progress of any trial, in any civil suit, pending in any court of record, either party shall except to the opinion of the court, and shall write his exceptions, and pray the court to allow and sign the same, the person composing the court shall, if such bill be true, sign the same."

And by section 3636, as amended in 1885 (Session Acts 1885, p. 215), it is provided: " Such exceptions may be written and filed at the time, or during the term of court at which it is taken, or within such time thereafter as the court may, by an order entered of record, allow. All exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions. "

In construing these provisions of our practice act it has been held that, where a motion for new trial is not disposed of at the term during which it is filed, but is continued to the next ensuing term, and then disposed of, the bill of exceptions may be properly filed at such succeeding term, for the reasons that " all exceptions taken during the trial of a cause, or issue, before the same jury, shall be embraced in the same bill of exceptions," and that, until the motion for new trial is disposed of, the whole matter rests in the breast of the court, and that it cannot be said that the cause is finally determined while the motion for new trial remains undecided. Riddlesbarger et al. v. McDaniel et al., 38 Mo. 140; Hewze v. Railroad, 71 Mo. 644. This construction seems to be correct, and it may be supported by the further consideration, that a motion for new trial specifying the grounds thereof, is necessary, to save the exceptions taken during the trial, and it would be unreasonable, therefore, to require the filing of a bill of exceptions until the determination of the motion for new trial. The motion for new trial should, for the purposes of these provisions of the practice act, be treated as a part of the cause.

It...