Smith v. Flick

• Citation: 83 S.W. 73
• Parties: SMITH v. FLICK et al.
• Decision Date: 07 November 1904
• Court: Court of Appeal of Missouri (US)

83 S.W. 73

SMITH v. FLICK et al.

Kansas City Court of Appeals. Missouri.

November 7, 1904.

APPEAL — STATUTES — RULE OF COURT — FAILURE TO PROSECUTE AND PERFECT APPEAL — AFFIRMANCE.

1. Rev. St. 1899, § 810, providing that any judge of the Supreme Court or either of the Courts of Appeals, in cases appealable to those courts, on inspection of the record, may in certain cases grant an appeal within one year next after the rendition of the final judgment or decision of the cause, confers no right of appeal when an appeal taken under section 813 is pending.

2. Rev. St. 1899, § 813, provides that the appellant shall cause to be filed in the office of the proper appellate court, 15 days before the first day of the term of the court, a perfect transcript of the record and proceedings in the cause, or, in lieu of such transcript, a certified copy of the record entry of the judgment appealed from. Rule 25 of the Kansas City Court of Appeals provides that the date of the allowance of the appeal, and not the time of filing the bill of exceptions after the appeal is granted, shall determine the term to which the appeal is returnable. Held, that where an appeal was granted on November 11, 1903, it was essential that appellant file with the clerk a transcript of the record or certificate of the judgment 15 days before the March term, 1904, of the court, and failure to do so was not excused because appellants were misled as to the time when they were to file their bill of exceptions.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by Evan A. Smith against Henry P. Flick, administrator, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

E. R. Bartlett and Rufus Anderson, for appellants. Fogle & Eason, for respondent.

BROADDUS, J.

The history of the case is as follows: On the 9th day of November, 1903, the cause was tried, and plaintiff recovered a verdict and judgment against defendants for $330. On the 11th day of said month, motions for new trial and in arrest of judgment were filed, heard by the court, and overruled. On the same day an affidavit for appeal was filed, appeal granted to the Kansas City Court of Appeals, and leave taken to file appeal bond during the term of court then in session in the sum of $700; and leave was also granted defendants to file their bill of exceptions within 90 days from that date. On June 22, 1904, the plaintiff (respondent here) filed a motion in this court to affirm the judgment of the...