State ex rel. Caldwell v. Redd

• Decision Date: 31 October 1878
• Citation: 68 Mo. 106
• Parties: THE STATE ex rel. CALDWELL v. REDD, Circuit Judge.
• Court: Missouri Supreme Court

68 Mo. 106

THE STATE ex rel. CALDWELL

v.REDD, Circuit Judge.

Supreme Court of Missouri.

October Term, 1878.

Petition for Mandamus.

The respondent was judge of the Ralls circuit court. The first bill of exceptions was found, the second time, after these proceedings were instituted. The other facts appear in the opinion.

Waters & Winslow with H. S. Priest for relator.

John T. Redd pro se.

SHERWOOD, C. J.

Relator was defendant in an action in the Ralls circuit court. During the course of the trial, he saved divers and sundry exceptions to the ruling of the court and after a verdict and judgment against him, by consent of parties, entry was made of record, granting relator sixty days wherein to file his bill of exceptions. Within a day or two thereafter, and during the term of the trial, a bill was presented by relator for the signature of respondent, which bore an endorsement signed by the respective attorneys of the parties, to the effect that being unable to agree to it as a correct bill of exceptions, it was referred to the judge for correction and revision. The judge was then engaged in the trial of a cause, and not being able to then examine the bill, laid it aside until a more convenient season; and in the usual hurry incident to the closing hours of a term, it was mislaid. Afterwards, at the session of the Hannibal court of common pleas, and about the middle of May, 1877, the attention of the judge being called to the matter by Mr. Anderson, of counsel for relator, and his recollection being refreshed, the judge made the suggestion to Anderson, who, in compliance therewith, made inquiry of the clerk of the Ralls circuit court, and succeeded in obtaining the bill from the latter, who had found it among some loose papers of the court after the close of the term. Anderson, having procured the bill, presented it to the judge for his signature. But the judge being then, also, engaged in the trial of another cause, and seeing the endorsement, and not knowing in respect to what portions of the bill counsel disagreed, laid it temporarily aside, until the occurrence of opportunity for making the proper examination. The bill, however, was again lost during the term of the Hannibal common pleas court, which closed in the latter part of May. The judge, after making diligent search in his own papers, and inquiries of the clerk and attorneys of the court, failed to find the bill, which was afterwards, in December last, found by the clerk among the files of the court, and by him forwarded to one of relator's counsel, who, in turn, forwarded it to the clerk of the Ralls circuit court, who now has it in his possession. Meanwhile, however, and after the adjournment of the Hannibal common pleas, and in June, 1877, a considerable time after the expiration of the 60 days limited by agreement of parties a bill of exceptions, prepared by Anderson, one of counsel for relator, in lieu of the lost bill, was delivered to the judge, by a grocer of Palmyra, with whom it had been left for that purpose, but who, likewise, had mislaid it, and would have entirely forgotten it, had he not accidently discovered it. When the grocer became the trusted agent of relator's counsel for the bill's delivery to the judge, does not appear, whether within the sixty days or not; but within three...