School Dist. No. 1, Tp. 24, Range 4, v. Boyle

• Decision Date: 19 June 1905
• Citation: 113 Mo. App. 340,88 S.W. 136
• Parties: SCHOOL DIST. NO. 1, TP. 24, RANGE 4, v. BOYLE et al.
• Court: Missouri Court of Appeals

88 S.W. 136

113 Mo. App. 340

SCHOOL DIST. NO. 1, TP. 24, RANGE 4, v. BOYLE et al.

St. Louis Court of Appeals. Missouri.

June 19, 1905.

1. BILL OF EXCEPTIONS—FILING—TIME.

A bill of exceptions, not filed within the time granted by the court for that purpose, will not be noticed on appeal.

2. SAME—EVIDENCE—RECORD.

A recital contained in a bill of exceptions that it was filed in due time, etc., was insufficient to show the facts, since proof that time was allowed to file a bill of exceptions must be shown by the record proper, outside of the bill itself.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by school district No. 1, township 24, range 4, against Arthur Boyle and others. From a judgment for defendants, plaintiff appeals. Transferred by Supreme Court to St. Louis Court of Appeals. 81 S. W. 409. Affirmed.

This cause was transferred to this court from the Supreme Court. It originated in the circuit court of Oregon county. The petition counts upon a building contract and bond, and in substance alleges that defendant Boyle, a contractor and builder, entered into a contract with plaintiff school district, whereby he was to erect for plaintiff a certain brick school building as provided in said contract; that the other defendants are sureties on the bond for the faithful performance of the contract; that defendant failed to erect said building in accordance with the requirements of such contract, etc.—and prays judgment for $5,000, the penalty of said bond, to be satisfied by the payment of the aggregate sum of $2,286.52, etc. The issues were tried to a jury in the Howell circuit court, to which court the cause had been transferred by change of venue. The finding was for the defendants. Plaintiff appeals.

The appeal is in what is commonly called the long form; that is, a transcript of the entire record is filed in this court over the certificate and hand of the clerk. This record shows the following facts: The trial was completed on February 2, 1901, and on the same date separate motions for new trial and in arrest of judgment, having been filed, were by the court overruled, and on the same day a proper affidavit for appeal to the Supreme Court was filed, whereupon the appeal therein prayed for was granted plaintiff to that court. On the same day and at the same time when such appeal was allowed, plaintiff was granted 90 days in which to prepare and file its bill of exceptions. There is no order in the transcript of the record before us granting further time for the filing of said bill. The only further entry in the record pertaining to the bill of exceptions is that of date May 31, 1901, which shows the filing of said bill on that date, from which it conclusively appears that the bill of exceptions was not filed within the 90 days' time theretofore allowed by the court.

So much for the showing of the record in this behalf. It must be stated, however, that the bill of exceptions, at its conclusion, immediately before the certificate of the judge, contains the following entry, to wit: "And thereafter, to wit, on the ____, and before the time originally granted for the filing of the bill of exceptions had expired, the time for filing said bill of exceptions in the above-entitled cause was by an order entered of record in vacation extended thirty days from the expiration of the time originally granted." As said, this quotation is from the bill of exceptions, and it nowhere appears in the transcript, which is certified to us by the clerk under his hand and seal to be a correct transcript of the entire record in said cause. Respondent moves to strike out the bill of exceptions on the ground that the record shows it was filed more than 90 days after the order granting time to file was made, and upon the ground that there is no record showing that said time was extended so as to include May 31st, the date of filing.

Harris & Norman and A. H. Livingston, for appellant. W. J. Orr, for respondents.

NORTONI, J. (after stating the facts).

It has frequently been decided in this state that, unless the bill of exceptions is filed within the time granted by the court for that purpose, it will not be noticed in the appellate court. State v. Harris, 121 Mo. 445, 26 S. W. 558; Butler County v. Graddy, 152 Mo. 441, 54 S. W. 219; Dorman v. Coon, 119 Mo. 68, 24 S. W. 731; Girdner v. Bryan, 94 Mo. App. 27, 67 S. W. 699; State v. Britt, 117 Mo. 584, 23 S. W. 771; State v. Apperson, 115 Mo. 470, 22 S. W. 375; State v. Scott, 113 Mo. 559, 20 S. W. 1076. It has also been frequently decided that in cases of this kind there must be a showing in the record proper, and aliunde the bill of exceptions...