Metz v. Sutton

• Decision Date: 07 March 1905
• Parties: METZ, Respondent, v. SUTTON, Appellant
• Court: Missouri Court of Appeals

85 S.W. 929

111 Mo.App. 444

METZ, Respondent, v. SUTTON, Appellant

Court of Appeals of Missouri, St. Louis

March 7, 1905

Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley Judge.

AFFIRMED.

Judgment affirmed.

Oren Wilson for appellant.

Edward D. Hays for respondent.

OPINION

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. R. S secs. 3635 and 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.' R. S., sec. 3637. Then a further step is provided, to-wit: By section 3638, Revised Statutes, 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 bill to be filed. Then, further, if the judge even yet refuse to permit such bill to be filed, 'and shall have certified that it is untrue,' then (and only then) is it permitted either party to 'take affidavits, not exceeding, five in number, in relation to the truth of such bill.' R. S., sec. 3640."

The bill of exceptions in this case is signed by three bystanders and it is stated in the abstracts that the judge who tried the case refused to sign the bill of exceptions, but there is nothing from the judge to show that he refused to sign it or, if he did refuse, why he refused. For these reasons the bill is invalid and cannot be considered by an appellate court.

Another insurmountable obstacle in the way of the consideration of the bill is that there is neither a recital or entry to be found anywhere in the record by which the bill may be identified. Reno v. Fitz Jarrell, 163 Mo. 411, 63 S.W. 808; State v. Baty, 166 Mo. 561, 66 S.W. 428.

No error is assigned in respect to the record proper. It follows that there is nothing...