St. Clair Land & Imp. Co. v. Martin

• Decision Date: 26 November 1894
• Citation: 28 S.W. 434,125 Mo. 114
• Court: Missouri Supreme Court
• Parties: ST. CLAIR LAND & IMP. CO. v. MARTIN et al.

28 S.W. 434

125 Mo. 114

ST. CLAIR LAND & IMP. CO. v. MARTIN et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

PRACTICE ON APPEAL — FILING TRANSCRIPT.

Where the time within which a bill of exceptions may be filed has not expired, the judgment will not be affirmed on the ground that the appellant failed to file a transcript of the record 15 days before the first day of the term of the appeal, as provided by Rev. St. 1889, § 2253.

Appeal from circuit court, St. Clair county.

Action by the St. Clair Land & Improvement Company against Martin and another. Judgment for defendants, and plaintiff appealed. On motion by defendants to affirm the judgment. Motion denied.

John H. Lucas, for appellant. T. O. Williams and Graves & Clark, for respondents.

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, § 57), and we therefore notice judicially that the term began on the fourth Monday (namely, the 22d day) of October, 1894. Under section 2253, Rev. St. 1889, the appellant is required to file in the office of the proper appellate court, 15 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 (Rev. St. 1889, § 2172); and it must be included in the transcript upon appeal, when requested by the appellant (Rev. St. 1889, § 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, § 1), namely: "Sec. 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...