Moberly Bldg. & Loan Ass'n v. True

• Decision Date: 31 October 1883
• Citation: 79 Mo. 193
• Parties: THE MOBERLY BUILDING & LOAN ASSOCIATION v. TRUE et al., Appellants.
• Court: Missouri Supreme Court

79 Mo. 193

THE MOBERLY BUILDING & LOAN ASSOCIATION

v.TRUE et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Randolph Circuit Court.--HON. G. H. BURCKHARTT, Judge.

AFFIRMED.

O. T. Rouse for appellants.J. E. Hazell and Draffen & Williams for respondent.

WINSLOW, C.

This is an action on a penal bond, executed by defendants to plaintiff, the particulars of which will appear by the petition hereinafter copied. Judgment was rendered against defendants September 20th, 1879; motion for a new trial filed the same day; overruled September 24th; motion in arrest filed and overruled September 24th; and appeal perfected September 25th; all at the September term, 1879, of said court. December 31st, 1879, being an adjourned term of said September term, an order was duly entered of record, by consent of parties, extending the time for filing the bill of exceptions to the first day of the February term, 1880. And, thereafter, the following orders appear of record, omitting captions: “And afterward, to-wit, on the 31st day of January, 1880, the following entry was made of record: Time for filing bill of exceptions herein is extended to the last day of the regular term next.” And afterward, to-wit, on the 13th day of February, 1880, it being the regular February term of said court, the following entry was made of record, to-wit: “Now come the defendants herein and file their bill of exceptions, which said bill is signed, sealed and made part of the record in this cause.”

1. PRACTICE IN SUPREME COURT: bill of exceptions.

It will be seen from the orders copied above, that the last order extending the time for filing the bill of exceptions was made without the consent of parties; which, under the rulings of this court precludes us from considering errors unless such as arise on the record proper.

2. A PETITION UPON A PENAL BOND.

The motion in arrest raises the question that the petition does not state facts sufficient to constitute a cause of action. The petition is as follows: “Now at this day comes the plaintiff herein by its attorneys, and says it is a corporation organized under and by virtue of the statute laws of the State of Missouri, as per article 7 of chapter 37 of Wagner's Missouri Statutes; that the object and general purpose of plaintiff as a corporation is to encourage and aid in building and improving real estate among its stockholders, and to that end to loan money to its stockholders to be used in building houses, and otherwise improve real estate; that William Coyle is a stockholder of plaintiff, and was at the date hereinafter set out; that plaintiff loaned said Coyle, on or about the 7th day of November, 1877, $700, to be by him used in the building of a residence, and...