State v. Caldwell

• Decision Date: 20 April 1886
• Citation: 21 Mo.App. 645
• Parties: STATE OF MISSOURI, Respondent, v. MATILDA CALDWELL ET AL., Appellants.
• Court: Missouri Court of Appeals

21 Mo.App. 645

STATE OF MISSOURI, Respondent,

v.MATILDA CALDWELL ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 20, 1886.

APPEAL from the Lewis County Circuit Court, BEN. E. TURNER, Judge.

Affirmed.

BLAIR & MEACHAM, for the appellant.

OLIVER C. CLAY, for the respondent.

LEWIS, P. J., delivered the opinion of the court on motion to affirm.

An appeal was allowed to the defendants in this cause, on September 26, 1885. No transcript of the record having been filed by them within the time required by law, the respondent produces in court a perfect transcript, duly certified, and asks for an affirmance of the judgment. The appellants resist this application and undertake to show, by affidavits, good cause for their failure to prosecute the appeal.

It appears that, on or about December 30, 1885, the defendants' attorneys directed the clerk to make out a transcript and send it to the clerk of this court, for filing, without delay. The circuit clerk had the transcript completed and ready in ample time for due transmission, but withheld it because he had not been furnished with the docket fee of ten dollars which should be paid to the clerk of this court on the filing of the transcript. The circuit clerk heard nothing further from the attorneys for the defendants until after February 13, 1886, which was the last day for filing. The managing counsel for the defendants, was absent during the early part of February, and it was not until after the date just mentioned when he first heard that the transcript had not been forwarded to this court. He then caused it to be sent and filed here on March 9, 1886.

No stay or supersedeas was ordered on the granting of the appeal. It follows that, as to the matter of this motion, the case stands on the same footing with civil cases. Rev. Stat., sect. 1990; The State v. Jilz, 3 Mo. App. 597; The State v. Daily, 45 Mo. 153. The only question, then, is, whether the appellants have shown “good cause,” sufficient to excuse their failure to file the transcript within the proper time. Upon this question, the supreme court has furnished us with a light so clear that we can not ignore it if we would. In Caldwell v. Hawkins (46 Mo. 263), it is held that the duty of filing the transcript in proper time is a personal duty devolving on the appellant, and he can not transfer it to the clerk; nor will it avail the appellant that he had several times asked the circuit clerk to make it out and send it up, and that the latter had promised to do so. The supreme court adds that the statutory duty of the appellate court, in such a case, is “plain and imperative, and can not be dispensed with.”

The present...