Mitchell v. Sparlin

• Decision Date: 17 February 1914
• Parties: MITCHELL v. SPARLIN.
• Court: Missouri Supreme Court

164 S.W. 205

255 Mo. 124

MITCHELL v. SPARLIN.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. EVIDENCE (§ 41) — JUDICIAL NOTICE — TERMS OF COURT.

Judicial notice will be taken of the times of the regular terms of the circuit court of Newton county as fixed by Rev. St. 1909, § 4039.

2. EXCEPTIONS, BILL OF (§ 40)—EXTENSION OF TIME FOR FILING—TIME FOR GRANTING.

Under Rev. St. 1909, § 2029, which prior to its amendment by laws 1911, p. 139, required exceptions to be written and filed during the term when taken, or within such time thereafter as the court might allow, which time might be extended by the court or judge for good cause shown, where the court allowed until the second day of the next term of court for the filing of the bill of exceptions, an order made at the second term of court thereafter, extending the time for filing the bill of exceptions, was a nullity, and a bill filed within the time as so extended could not be considered, as the order extending the time must be made before the expiration of the time previously allowed.

3. EXCEPTIONS, BILL OF (§ 40) — TIME FOR FILING—STATUTORY PROVISIONS.

Where, in a case tried in March, 1910, the party was given until the second day of the June term of court to file a bill of exceptions, and she neither filed the bill nor procured an order extending the time within the time so allowed, her time for filing the bill was not extended by Laws 1911, p. 139, which was enacted March 13, 1911, and which amends Rev. St. 1909, § 2029, so as to provide that, in all cases "now and hereafter pending" on appeal, the bill of exceptions may be allowed and filed at any time before the appellant shall be required by the rules of the appellate court to serve his abstract of the record.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by Charlotte E. Mitchell against Halley Sparlin. From a judgment for defendant, plaintiff appeals. Affirmed.

R. B. Wilcox, of Racine, and Thos. M. Saxton, of Neosho, for appellant. A. D. Bennett, of Vinita, Okl., for respondent.

WALKER, P. J.

This is an appeal by the plaintiff from a judgment in ejectment rendered in the circuit court of Newton county, at its February term, 1910, in favor of defendant for 40 acres of land in said county, described as the N. W. ¼ of the S. W. ¼ of section 20, township 25, range 33. The trial was had, judgment rendered, and an appeal granted at an adjourned term of the regular February term of said circuit court, held in March, 1910, the record entry of the granting of the appeal bearing date of March 16, 1910, and being as follows: "Appeal granted to the Supreme Court, and plaintiff given leave to file bill of exceptions on or before the second day of the next term of this court."

Judicial notice will be taken of the fact that three regular terms of the circuit court of Newton county are required to be held in each year, namely, on the fourth Monday in February, the first Monday in June, and the second Monday in October. Section 4039, R. S. 1909. Ray Co. Bank v. Hutton, 224 Mo. 42, 51, 137 S. W. 47; Nickey v. Leader, 235 Mo. 30, 40, 138 S. W. 18.

The "next term" of said court was therefore within the meaning of the above order, the June term, 1910, at which time no orders were made or action taken in regard to this case. At the October term the following entry appears of record: "And on the 10th day of October, 1910, it being the first judicial day of said October term of the court, the following proceedings in this cause were had, to wit: `Time for filing bill of exceptions in this cause extended until December 15, 1910.'" And thereafter, on the 13th day of December, 1910, the plaintiff filed her bill of exceptions.

The material portions of the statute (section 2029, R. S. 1909), regulating the signing and filing of exceptions at the time the proceedings were had herein,...