Reynolds v. Schade

• Decision Date: 31 March 1908
• Parties: REYNOLDS v. SCHADE et al.
• Court: Missouri Court of Appeals

109 S.W. 629

131 Mo. App. 1

REYNOLDS v. SCHADE et al.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

1. EXCEPTIONS, BILL OF — TIME FOR FILING — STIPULATION OF PARTIES — ORDER OF COURT.

Under Rev. St. 1899, § 728 (Ann. St. 1906, p. 720), providing that the bill of exceptions may be filed during the term, or within such time thereafter as the court may by order allow, which may be extended by the court or judge in vacation, or within the time the parties may thereafter in writing agree on, which agreement shall be filed by the clerk and copied into the transcript, a subsequent order of the court or judge is not necessary to make the stipulation of the parties effective.

2. SAME — TIME OF FILING STIPULATION.

The stipulation of the parties extending the time for filing of exception, which Rev. St. 1899, § 728 (Ann. St. 1906, p. 720), provides merely shall be filed by the clerk and copied into the transcript, while required to be entered into before expiration of the time for filing the exceptions as previously extended by the court, need not be filed within such time.

3. BILLS AND NOTES — PAYMENT — NEW NOTES.

The giving of a new note with security for the balance due on a note does not operate as a payment of the balance and extinguish the old note, unless it is so understood by the parties at the time; so that it cannot be said as matter of law that a note was so extinguished, the parties testifying that the new note and deed of trust were merely intended as additional security, and that the payee continued to hold the old note.

4. EVIDENCE — WRITINGS — PAROL EVIDENCE — NATURE OF LIABILITY.

While, where H. and wife execute their note, secured by deed of trust on his land, with nothing therein relative to the one or the other being principal or surety, they are both presumptively principals, and payment of the note by one extinguishes the debt, and terminates the power of sale under the deed of trust, yet it may be shown by parol that the one making the payment, and taking an assignment of the deed of trust, was only a surety, and therefore entitled to have the property sold under the power in the deed of trust.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Suit by James G. Reynolds against W. F. Schade and others to enjoin sale under a deed of trust. Judgment for defendants. Plaintiff appeals. Reversed and remanded.

Wilson Cramer, for appellant. W. H. Miller, for respondents.

NORTONI, J.

The first question relates to an extension of time for filing the bill of exceptions. On the 5th day of September, 1905, and during the term, the court granted plaintiff 90 days from that date in which to file a bill of exceptions. The time thus granted would expire on the 4th day of December, 1905. During that time, and before its expiration, to wit, on November 20th, counsel representing either party entered into a stipulation providing that plaintiff should have additional time for the filing of his bill of exceptions, which additional time should expire February 1, 1906. Although this stipulation was executed as of date November 20, 1905, plaintiff's counsel neglected to file it with the clerk until December 18, 1905; that is to say, although executed within the time granted by order of the court for filing the bill of exceptions, it was not filed until after that time had expired. Respondent makes the point here that the bill of exceptions filed in the case under the authority thus appearing should be stricken from the files, for the reason that the stipulation was not filed with the clerk on or before December 4, 1905 — that is, within the time extended by the order of the court — and, further, that the stipulation by itself is insufficient to authorize the filing of the bill, for the reason no order by the judge in vacation was entered thereon. It is said the stipulation must ripen into an order of the court in term or an order of the judge in vacation. It is very true that the stipulation providing for an extension of time in which the bill of exceptions may be filed is not sufficient of itself unless it had been preceded by an order of the court first extending the time; but, after the court has granted an extension of time, the statute then specifically authorizes the parties to further extend the time by stipulation. Such is the express provision of section 728, Rev. St. 1899 (section 728, Mo. Ann. St. 1906). And the question has been pointedly ruled and determined in State v. Ryan, 120 Mo. 88, 22 S. W. 486, 25 S. W. 351. See, also, State v. Wyatt, 124 Mo. 537, 27 S. W. 1096. Now, in this case, the court had first extended the time to December 4th by an order of record, and it was therefore entirely competent for the parties to further extend the same by agreement, as contemplated by the statute, supra. As to the proposition that an order of the court in term time, or the judge in vacation must be entered upon such stipulation, or as suggested by counsel, that the stipulation must ripen into such an order, the question has been determined by the judgment of our court of last resort adversely to the argument advanced by respondent. In State v. Hilterbrand, 116 Mo. 543, 22 S. W. 805, it will be observed, by reference to the Attorney General's brief, that the identical argument was urged upon the Supreme Court. The time had been further extended by stipulation for filing the bill of exceptions in that case, and no order of the court in term nor of the judge in vacation appeared to have been entered in affirmance of the stipulation on file. Notwithstanding the argument of the Attorney General mentioned, in the opinion given, the court said such was an erroneous view of the statute; that it was entirely competent for the parties litigant during the time theretofore extended by the court to further extend the time for filing the bill by stipulation to that effect. The import of the ruling manifestly is that no order of the court in term nor of the judge in vacation is essential on such stipulation when validly entered into between parties before the expiration of the time theretofore granted for filing the bill. And so, too, it appears by reference to the Attorney General's brief in connection with the opinion of the court in State v. Wyatt, 124 Mo. 537, 27 S. W. 1096, that the identical question was urged upon the Supreme Court a second time, and repudiated curtly, and without elaboration.

As to the proposition that the stipulation must not only be entered into prior to the expiration of the time theretofore extended for the filing of the bill, but that it must be filed with the clerk as well within that time, it is sufficient to say that the question with respect to the date of its filing has been ruled adversely to respondent's argument in Monarch Rubber Co. v. Bunn, 78 Mo. App. 55. The statute involved was construed in that case. It was said that, while the statute requires the agreement to be made before the time granted had expired, it does not require that it shall be filed within that time. We also have carefully considered the statute with respect to this matter, and feel that the judgment given by the Kansas City Court of Appeals in the case last cited is entirely sound. Indeed, there is nothing appearing in section 728, Rev. St. 1899, referred to, which requires such stipulation to be filed prior to the expiration of the time mentioned. Indeed, in many instances such stipulation is not entered into until the very last day of the time granted, it not appearing until then that it is impossible to complete the bill; and, where the parties are far removed from the office of the clerk in which the stipulation should be filed, the wholesome purpose of the statute would be defeated by a construction which would require the stipulation to be filed within the time mentioned. Authorities are cited by respondent and arguments submitted in support of the proposition that it must be exemplified to this court by the record proper, or the abstract thereof when the case is here on short form, aliunde the bill of exceptions, to the effect that the several extensions for filing the bill were granted each before the last preceding extension had expired. And, indeed, such is the well settled law. The argument advanced from this premise is that there must be an order of the court based on the stipulation mentioned; otherwise there could be no order or abstract thereof shown aliunde the bill of exceptions as to such extension of time. We are persuaded the learned counsel has overlooked the express provisions of the statute (section 728, supra) with respect to the stipulation being considered. Now, while it is true that stipulations, like motions, are usually preserved in the bill of exceptions, which ordinarily is the proper repository therefor, it seems the statute (section 728), which authorizes the stipulation now under consideration, contemplates that it shall be treated by the clerk and appellate court as part of the record in the cause, for it makes no provision as to its exemplification on appeal in the bill of exceptions, while, on the other hand, it expressly provides that it "shall be filed by the clerk in such suit and copied into the transcript of record when sent to the Supreme Court or Courts of Appeals." Learned counsel for appellant in this case has set the stipulation out in full as parcel of his abstract, treating it as the statute contemplates, as a proper paper to be incorporated into the transcript of record. From this abstract on file it appears clearly that the agreement for an extension of time to February 1, 1906, was made on November 20, 1905, and within the time extended by the court, which expired on December 4th. These facts appearing, the record is sufficient, even though the stipulation was not filed until December 18, 1905, and after the time theretofore extended had expired.

The suit is in equity, seeking to enjoin the sale of certain real estate...