Reynolds v. Schade

• Decision Date: 31 March 1908
• Citation: Reynolds v. Schade, 131 Mo. App. 1, 109 S.W. 629 (Mo. App. 1908)
• Parties: REYNOLDS, Appellant, v. SCHADE et al., Respondents
• Court: Missouri Court of Appeals

109 S.W. 629

131 Mo.App. 1

REYNOLDS, Appellant, v. SCHADE et al., Respondents

Court of Appeals of Missouri, St. Louis

March 31, 1908

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

REVERSED AND REMANDED.

Wilson Cramer for appellant.

The endorsement of the $ 3,000 note by Robert L. Taylor to Bettie D. Hempstead upon the payment of the note for $ 1,342.35 on July 2d, 1904, did not continue the note in force.The note was the joint note of Benjamin R. Hempstead and Bettie D Hempstead, and the payment by either party extinguished the debt and canceled the note.2 Parsons on Notes and Bills, p 237;Williams v. Gerber,75 Mo.App. 18.

W. H Miller for respondents.

(1) At the very threshold respondent contends that there is no bill of exceptions in the case and therefore nothing here for review, except the record proper.The recital in the bill is not proof of the record and especially is this true when the plain record is at variance with the allegations of the bill.Bick v. Williams,181 Mo. 528;Powell v. Sherwood,162 Mo. 605;Doherty v. Raba,154 Mo. 365.(2) The time within which to file a bill of exceptions can at no time be extended by counsel without a written order of the court(either term time or vacation) made before the lapse of time first given.No written or even verbal order of the court is shown in this record at all.(3) Unless it be the vacation record made by the clerk, and that was too late.That entry recites a stipulation and not a court order or order of judge in vacation.Bushell & Glessner Co. v. Forman,83 Mo.App. 70;Mitchell v. Williams,79 Mo.App. 389;Maddox v. Railway,73 Mo.App. 510;State v. Schumann,133 Mo. 111;Dorman v. Cook,119 Mo. 68.Stipulation of counsel standing alone is not sufficient, but must ripen into an order of court either in term time or vacation.

NORTONI, J. Bland, P. J., and Goode, J., concur.

OPINION

NORTONI, J.

--The first question relates to an extension of time for filing the bill of exceptions.On the fifth day of September, 1905, and during the term, the court granted plaintiff ninety 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 1st, 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 has 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,Revised Statutes 1899,section 728 Mo. Ann. Stat. 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 alsoState v. Wyatt,124 Mo. 537, 27 S.W. 1096.

Now in this casethe 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 statutesupra.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,Revised Statutes 1899, referred to, which requires such stipulation to be filed prior to the expiration of the time mentioned.Indeed, in many instances such stipulations are 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, aliundebill 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 aliundethe bill of exceptions as to such extension of time.We are persuaded the learned counsel has overlooked the express provisions of the statute, section 728supra, 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 parts 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.

2.The suit is in equity, seeking to enjoin the sale of certain real estate advertised under the provisions of a deed of trust.The defendant Schade, as Sheriff of Cape Girardeau County had advertised the property for sale, as substituted trustee under a competent provision to that effect in the deed.It is alleged in the bill that the debt evidenced by the note, described and secured in the deed of trust, had been...