Roush v. Cunningham

• Decision Date: 21 May 1901
• Citation: 163 Mo. 173,63 S.W. 377
• Parties: ROUSH v. CUNNINGHAM et al.
• Court: Missouri Supreme Court

63 S.W. 377

163 Mo. 173

ROUSH v. CUNNINGHAM et al.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

BILLS OF EXCEPTIONS—TIME FOR FILING— RECORD ENTRY—FAILURE—APPEAL.

Where leave to file a bill of exceptions was extended "until and during the June term of 1898," and the bill was handed to the clerk within the time, and marked "Filed" by him, but he failed to make any record entry showing such filing, the bill constituted no part of the record, and hence would not be considered on appeal.

Appeal from circuit court, Linn county; W. W. Rucker, Judge.

Suit by Cora A. Roush against John W. Cunningham and others. From a judgment for defendants, plaintiff appeals. Affirmed.

A suit in equity was commenced by plaintiff in the Linn circuit court on May 2, 1895, whereby plaintiff sought to have a decree of specific performance of an alleged contract by Jacob Cunningham with the mother of plaintiff to adopt plaintiff as his child, and leave her his property at his death, rendered in her favor. The answer of the defendants, the heirs at law of said Cunningham, denied all the allegations of the bill. On a trial in the circuit court the finding and judgment was for the defendants, and plaintiff appeals.

A. W. Mullins, for appellant. E. R. Stephens, G. R. Balthrope, and Chas. A. Loomis, for respondents.

GANTT, J.

1. It is insisted by the defendants that the bill of exceptions incorporated in the transcript sent to this court is no part of the record, because the same was not filed in the circuit court at the June term, 1898. The abstracts and briefs were due at the October term, 1900, of this court, for the January call, 1901. The plaintiff and appellant served defendant's counsel with her abstract on the 3d day of December, 1900, and filed the same in this court December 8, 1900. On December 18, 1900, the defendants challenged the correctness of plaintiff's abstract by written objections filed in this court. They specified that the recital in the abstract that "plaintiff, within the time given by the court at the June term, 1898, duly filed her bill of exceptions in said cause," was untrue, and asked for a rule on the circuit clerk for a certified copy of all that part of the record of the circuit court pertaining to the extension of time granted plaintiff to file her bill of exceptions and all that part of the record pertaining to or in any way showing whether said bill of exceptions was ever filed or not, and when the same was filed. The rule was issued as prayed, and in his return the clerk returns and certifies that the circuit court of Linn county "convened at a regular term of court on Monday, June 6, 1898, and continued in regular session until the 15th day of June, 1898, and that during said session of said term the bill of exceptions `was not filed of record' in said court. Nor was any record entry showing the filing of...