St. Clair County Land And Investment Company v. Martin

• Decision Date: 26 November 1894
• Citation: 28 S.W. 434,125 Mo. 114
• Parties: St. Clair County Land and Investment Company, Appellant, v. Martin
• Court: Missouri Supreme Court

28 S.W. 434

125 Mo. 114

St. Clair County Land and Investment Company, Appellant, v. Martin

Supreme Court of Missouri, First Division

November 26, 1894

Motion overruled.

John H Lucas for appellant.

Graves & Clark for respondent.

Barclay J. Judges Brace and Macfarlane coincide in these views.

OPINION

Barclay

Motion to affirm judgment.

Barclay J. -- The respondent has filed a motion to affirm the circuit judgment in this cause.

As motions to the same effect have been frequently made of late in other cases, presenting a similar state of facts, it may be well to shortly give the reasons for the ruling which this division of the court makes on the point involved.

The facts are that, at the July term (July 23), 1894, a judgment for defendants was rendered in the St. Clair circuit court.

After moving unsuccessfully for a new trial, plaintiff appealed to the supreme court, in proper form, at that term. At the same time and term, plaintiff obtained leave of court to file a bill of exceptions at the next term of the court. The date of that term is fixed by public law (Laws 1892, p. 14, section 57), and we, therefore, notice judicially that the term began on the fourth Monday (namely the twenty-second day) of October, 1894.

Under section 2253 (R. S. 1889), the appellant is required to file in the office of the proper appellate court fifteen days before the first day of the return term of the appeal, a perfect transcript of the record in the cause, or a certified copy of the judgment and entry of appeal, to be supplemented by a printed abstract thereafter, in due course, as prescribed in that section.

The bill of exceptions forms a part, often a very important part, of the record of the cause in which it is filed (R. S. 1889, sec. 2172); and it must be included in the transcript upon appeal, when requested by the appellant (R. S. 1889, sec. 3237).

Keeping the above cited sections in view, what is the proper construction to be given to section 2252 as recently amended (Laws 1891, p. 69, sec. 1) namely:

"Section 2252. All appeals taken sixty days before the first day of the next term of the supreme court or either of the courts of appeals shall be returnable to such next term, and all appeals taken in less than sixty days before the first day of such next term shall be returnable to the second term thereafter. The appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section, and if he fails to do so, and the respondent shall produce in court the certificate of the clerk of the court in which such appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, against whom the same was rendered, the name of the party in whose favor the appeal was granted, and the time when the appeal was granted, such certificate shall be prima facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the appellate court to affirm the judgment so appealed from, and the court shall affirm the...