State v. Butler

• Decision Date: 04 June 1906
• Parties: STATE v. BUTLER.
• Court: Missouri Court of Appeals

95 S.W. 310

118 Mo. App. 587

STATE v. BUTLER.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. CRIMINAL LAW—CONTINUANCE—COSTS.

Continuance to an adjourned term of a regular term is within Rev. St. 1899, § 2599, providing for continuance of a criminal case at the cost of the moving party.

2. COSTS — CRIMINAL CASES—CONTINUANCE — JUDGMENT—COLLATERAL ATTACK.

The judgment assessing costs against defendant in a criminal case because of a continuance cannot be collaterally attacked by motion to recall and quash the execution; the court having had jurisdiction of defendant and of the subject-matter.

Appeal from Circuit Court, Boone County; E. W. Hinton, Special Judge.

Prosecution of Edward Butler. Defendant's motion to recall and quash an execution on a judgment against him for costs was denied, and he appeals. Transferred from the Supreme Court. 90 S. W. 378. Affirmed.

T. J. Rowe, for appellant. F. G. Harris, for the State.

BROADDUS, P. J.

On the 17th day of June, 1902, the cause out of which this arose was pending in said court and was set down for trial for the 13th day of October for that year; it being the first day of the October term. On the 15th day of October the defendant filed an application for a continuance until the next regular term of the court, alleging as a ground therefor the absence of a material witness. A continuance was granted, but not to the next regular term of the court, but to a subsequent day in the same term. The order of continuance is as follows: "The defendant then files his application under oath for a continuance of the cause, and after duly considering the same the court doth order that this cause be continued to an adjourned term to be begun and holden * * * on Monday, the 10th day of November, A. D. 1902. * * *" Following the order of continuance is a judgment in favor of the state against the defendant for all the costs of the term and an order that execution issue therefor. On March 8, 1904, an execution was issued by the clerk of the court in favor of the state against the defendant for $507, the amount of the costs which had accrued at said October term. On the 15th day of the month, defendant filed his motion to recall and quash said execution because the same was illegally issued, which was overruled, and defendant appealed.

Defendant contends that there was and could be no adjourned term of the October term of said court, but that in fact it was the same term; that the cause was merely...