Metz v. Sutton

• Citation: 111 Mo. App. 444,85 S.W. 929
• Parties: METZ v. SUTTON.
• Decision Date: 07 March 1905
• Court: Court of Appeal of Missouri (US)

85 S.W. 929

111 Mo. App. 444

METZ v. SUTTON.

St. Louis Court of Appeals. Missouri.

March 7, 1905.

BILLS OF EXCEPTIONS — SIGNATURE BY BYSTANDERS — IDENTIFICATION.

1. Rev. St. 1879, §§ 3635, 3639, makes it the duty of the judge to allow and sign a true bill of exceptions. Section 3637 provides that if the bill, in the opinion of the judge, is untrue, he may refuse to sign the same, and certify the cause of such refusal. Section 3638 provides that after the refusal the litigant may secure the signatures of three bystanders, and again present the bill to the judge. Section 3640 provides that if the judge still refuse to permit the bill to be filed, and certifies that it is untrue, then either party may take affidavits in relation to its truth. Held, that a bill of exceptions signed by three bystanders is invalid, where there is nothing from the judge to show that he refused to sign the bill, or, if he refused, why he refused, but a mere statement in the abstract that he did refuse.

2. A bill of exceptions is invalid where there is neither recital nor entry anywhere in the record by which the bill may be identified.

Error to Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by John Metz against W. J. Sutton. There was a judgment for plaintiff, and defendant brings error. Affirmed.

E. D. Hays, for plaintiff in error. Orren Wilson, for defendant in error.

BLAND, P. J.

In State ex rel. Millett v. Field, 37 Mo. App., the Kansas City Court of Appeals, in respect to the signing of a bill of exceptions by bystanders, at pages 93 and 94, says: "Under the provisions of our statute law, there is a way to perfect and settle a bill of exceptions, provided the judge of the circuit court shall act in the matter. If the bill, as presented by the litigant, is true, then there is a mandatory obligation on the judge to allow and sign the same, and it thereby becomes a part of the record of the cause. Rev. St. 1879, §§ 3635, 3639. If such bill, in the opinion of the judge is untrue, then the judge may refuse to sign the same for that reason, `and he shall certify thereon the cause of such refusal.' Rev. St. 1879, § 3637. Then a further step is provided, to wit: By section 3638, Rev. St. 1879, after such refusal by the judge (and the refusal on the bill indorsed), the litigant may secure the same to be signed by three bystanders, and it shall then again be presented to the judge, and he shall, if he shall then believe it to be true, permit the said...