State ex rel. Zeppenfeld v. Wickham
| Decision Date | 19 February 1878 |
| Citation | 5 Mo.App. 301 |
| Parties | STATE OF MISSOURI, EX REL. WILLIAM ZEPPENFELD, Petitioner, v. JOHN WICKHAM, JUDGE, ETC., Respondent. |
| Court | Missouri Court of Appeals |
Under the tenth rule of practice of the St. Louis Circuit Court, the adverse party is required, within three days after the bill of exceptions is handed to him, to present his objections thereto, with the alterations demanded. Where this is not done, the judge may, for good cause shown, extend the time within which such objections are to be presented; and he is not bound to sign, as a bill of exceptions, a paper which is unfair, untrue, or insensible. It is the duty of the trial judge to see, not only that the bill of exceptions is true, but that it is intelligible; and this without reference to the adverse party's waiver of his objections to the bill of exceptions as offered.
APPLICATION for mandamus.
Writ refused.
WILLIAM ZEPPENFELD, pro se.
JECKO & HOSPES, for respondent.
The petitioner seeks a mandamus to compel the respondent, as judge of the St. Louis Circuit Court, to sign a bill of exceptions tendered by the relator, in the case of Strohmaier v. Zeppenfeld, or else to permit the same to be filed, as provided by law, with the signatures of three by-standers. At the hearing, upon the return to the alternative writ, the relator rests his case upon a single proposition, which may be thus stated: That, under the tenth rule of practice adopted by the Circuit Court, the adverse party having failed to present, within three days after the relator's bill of exceptions was handed to him, his objections thereto, with the alterations and additions demanded, his objections, if any, were waived, and the judge was bound by law to sign the bill of exceptions as tendered by the relator.
The relator seems to have fallen into the mistake of supposing that but two parties are to be consulted in the framing of a bill of exceptions; that if the parties to the cause agree, or if one party waives objections to a bill prepared by the other, nothing remains for the judge but to sign and file it, whatever may be its defects. It is useless to dwell on such an absurdity. If both parties agree upon a bill of exceptions, and the judge nevertheless finds it untrue, inconsistent, and unfair to the court itself, he would be unfit to hold his judicial position a moment if he signed such a paper. It is his duty always to see that bills of exceptions not only contain true statements of the testimony and rulings which they purport to preserve, but also that they present these matters in an intelligible form, so that the appellate court may perceive the points in controversy. For this purpose he may avail himself of suggestions from either party; and any rule of court, or interpretation of a rule, which...
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State v. Withrow
...to make rules was also expressed by the court of appeals in State v. Boyle (1877) 3 Mo. App. 604; State v. Wickham, Id.; and State v. Wickham (1878) 5 Mo. App. 301. The supreme court decisions already cited were rendered and published, and hence well known to the public, long before the ado......
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State ex rel. St. Louis, K. & N.W. Ry. Co. v. Withrow
... ... power to make rules was also expressed by the court of ... appeals in State v. Boyle (1877) 3 Mo.App. 604; ... State v. Wickham, Id.; and State v. Wickham ... (1878) 5 Mo.App. 301. The supreme court decisions already ... cited were rendered and published, and hence well ... ...