McKinney v. T. L. Wright Lumber Co.

• Decision Date: 31 March 1908
• Citation: 131 Mo. App. 425,109 S.W. 103
• Parties: McKINNEY v. T. L. WRIGHT LUMBER CO.
• Court: Missouri Court of Appeals

109 S.W. 103

131 Mo. App. 425

McKINNEY v. T. L. WRIGHT LUMBER CO.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

1. EXCEPTIONS, BILL OF — BYSTANDERS' BILL.

Under Rev. St. 1899, § 733 (Ann. St. 1906, p. 727), the verity of a bystanders' bill may be established by affidavits only when the judge certifies the bill to be untrue.

2. SAME — TIME FOR FILING.

Unless a bill of exceptions is presented, approved, and filed, or if a bystanders' bill certified to be untrue is deposited with the clerk within the time granted by the court or extended by the judge in vacation, it cannot be considered on appeal.

Appeal from Circuit Court, Mississippi County; Henry C. Riley, Judge.

Action by Thomas A. McKinney against the T. L. Wright Lumber Company. From a judgment for defendant, plaintiff appealed to the Supreme Court, whence the cause was certified (192 Mo. 32, 90 S. W. 726) to the St. Louis Court of Appeals. Affirmed.

C. D. Yancey and A. J. McCollum, for appellant. J. C. Sheppard and Jno. M. Atkinson, for respondent.

NORTONI, J.

The appeal was perfected to the Supreme Court. That court found itself to be without jurisdiction and certified the case here, as will more fully appear by reference to McKinney v. Wright Lumber Company, 192 Mo. 32, 90 S. W. 726. An examination of the record discloses the cause to have been instituted in the circuit court of Ripley county. The venue was afterwards changed to the circuit court of Mississippi county, in which court a trial was had resulting in a judgment for the defendant at the October term, 1902. In due time motions for new trial and in arrest of judgment were filed and overruled, and an appeal granted the plaintiff to the Supreme Court, as above stated. It appears that leave was given plaintiff to file his bill of exceptions within 90 days. The bill was not filed within that time, and Judge Riley granted further time therefor twice; the last extension of time for filing the bill of exceptions expiring March 4, 1903. No further extension was given by the judge nor by stipulation of counsel. Afterwards counsel for appellant presented a bill, and the judge declined to approve it. More than two years thereafter, to wit, September 11, 1905, plaintiff presented what he denominates a bill of exceptions authenticated by bystanders. The judge refused to permit the bystanders' bill to be filed, for the reason it was presented long after the extension of time for filing the bill of exceptions had expired. The judge did not certify this bill was untrue, however; and this is the sole condition upon which the verity of a bystanders' bill may be established by affidavits, under section 733, Rev. St. 1899 (Ann. St. 1906, p. 727). See State ex rel. Millett v. Field, 37 Mo. App. 83. Be this as it may, upon the refusal of the judge to permit the bystanders' bill to be filed, plaintiff proceeded to and did procure several affidavits vouching its integrity. These affidavits, together with the bill, were deposited within five days in the clerk's office. See section 734, Rev. St. 1899 (Ann. St. 1906, p. 728). The plaintiff now urges this court to review the cause upon the bill thus authenticated and filed, or, rather, deposited.

It is obvious the court cannot review any matter of exception therein preserved for several reasons, chief of which is the bill was filed out of time. Waiving the matter as to the judge not having refused the bystanders' bill for the reason it was untrue, it is the settled law that unless the...