Priddy v. Hayes

• Decision Date: 29 May 1907
• Citation: 102 S.W. 976,204 Mo. 358
• Parties: PRIDDY et al. v. HAYES.
• Court: Missouri Supreme Court

102 S.W. 976

204 Mo. 358

PRIDDY et al. v. HAYES.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. APPEAL — RECORD — BILL OF EXCEPTIONS — NECESSITY FOR PRESENTATION IN TIME — ALLOWANCE AND FILING.

Where bills of exceptions were not allowed and filed for more than a year after the expiration of the time fixed by the court for their filing, they present nothing for review on appeal.

2. EXCEPTIONS, BILL OF — ALLOWANCE — REFUSAL OF JUDGE — REMEDY.

Where a court erroneously refuses to sign a bill of exceptions, the remedy is mandamus to compel him to sign it, and the error cannot be corrected by an appeal.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by G. W. Priddy and others against Minerva J. Hayes. From a judgment, plaintiffs appeal. Affirmed.

This is one of the eight cases mentioned and referred to in the case of Priddy et al. v. MacKenzie et al., 102 S. W. ___, decided at the present term. This case and that one were, by stipulation of counsel, argued and submitted together. Prior to making that stipulation, counsel in writing agreed that this and the following seven cases might be argued together and submitted, to wit: Priddy et al. v. Kendall et al.; Priddy et al. v. Beals et al.; Priddy et al. v. McDearmond et al.; Priddy et al. v. Tomb et al.; Priddy et al. v. Rosecrans et al.; Priddy et al. v. Bayles et al.; Priddy et al. v. Merrill et al. The case at bar and the above-mentioned cases are the eight cases mentioned in the MacKenzie Case which were consolidated by the trial court and all were tried together, at the same time, over the objections and exceptions of the plaintiffs. All the pleadings, issues, and facts in each of these cases are the same as those in the MacKenzie Case, excepting the names of the defendants and the description of the land involved in each, and the statement of the facts in that case is hereby referred to and adopted as the facts in these cases, as far as they go; but there are some additional matters in these cases which do not exist in that one, or which were unnecessary to be stated in the disposition thereof. Said additional facts are as follows:

The decision was rendered July 17, 1903, and motions for new trial and in arrest were filed on the next day and overruled by the court, and leave was granted plaintiffs to file bills of exception on or before the 3d day of the October term, 1903, and the time for filing said bills was duly extended by the court, and the last extension was leave to file the bills on or before December 5, 1903. None of these extensions were asked for or granted at the instance of the plaintiffs, but were made in order to give the court and counsel for defendants more time in which to prepare and indorse upon the bills the reason for the court's refusal to allow and sign them. At first the only, reason assigned for such refusal, and that was orally made, was because those furnished by plaintiffs did not contain all the evidence in the case regarding the merits. The plaintiffs contended the trial court had no jurisdiction to try the cases, and that they wished to appeal for the purpose of having that point alone settled by this court, and that under that view of the cases the evidence touching the merits was wholly immaterial, and that they should not be compelled to pay the costs and expenses of preparing and printing the voluminous records therein, which aggregate more than 25,000 pages; and for those reasons refused to incorporate into the bills said evidence, which constituted the greater part of the records. Later, the court formulated additional reasons for its declination. So, on December 4th, plaintiffs filed in each of said cases a motion, asking for an extension of time in which to file said bills. The grounds assigned by plaintiffs in said motions were that the time was about to expire, and that they had not been informed of the character of the objections entertained, if any, and their rights to bills would be lost through no fault of theirs unless an extension was granted. On the next day, December 5th, this motion was taken up for consideration, and the following, substantially, occurred:

When the court opened the bills were lying upon the bench in front of the court with the court's written objections indorsed thereon, or attached thereto. Counsel for plaintiffs requested permission of the court to examine the bills and the objections thereto before said motion for an extension of time was passed upon. The court refused this request. Plaintiffs then requested the court to inform them the nature of the objections indorsed upon the bills, which was by the court refused. Plaintiffs, then, through their counsel, requested the court to permit them to examine said objections in the presence of the court in order that they might know the nature of same, and to make, if possible, such amendments or alterations of the bills as would cause them to conform to the court's objections. This request was also refused, and the court then and there ordered the clerk to file the objections with the bills of exceptions attached thereto, and when so filed to take them and seal them with sealing wax, and keep them under lock and key until further ordered. The plaintiffs duly excepted to the action of the court in refusing each and all of said requests. The court also overruled plaintiffs' motion asking for an extension of time for filing the bills, to which ruling plaintiffs duly excepted. Some time after the bills had been filed in open court, plaintiffs' counsel was permitted to examine the objections indorsed upon the bills, and found that the bills could be amended so as to comply with 10 or 12 of them, and they offered to make the alterations instanter, but the offer was by the court refused. The plaintiffs also found several other objections, based upon the absence of the testimony which was introduced on the merits of the cases, which they refused, as before stated, to incorporate into the bills, on account of its immateriality to the...