State v. Duncan

• Decision Date: 31 March 1908
• Citation: 130 Mo. App. 311,109 S.W. 73
• Parties: STATE ex rel. GREEN v. DUNCAN et al.
• Court: Missouri Court of Appeals

109 S.W. 73

130 Mo. App. 311

STATE ex rel. GREEN v. DUNCAN et al.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

1. EXCEPTIONS, BILL OF—TIME FOR FILING— EXTENSION OF TIME.

Neither a judge in vacation nor the court has power to extend the time for filing a bill of exceptions after the time theretofore extended has expired, but such extensions are valid only when made within the time theretofore extended.

2. APPEAL—REVIEW — FAILURE OF PETITION TO STATE CAUSE OF ACTION.

Though a bill of exceptions be not properly before the appellate court, and motions for a new trial and in arrest of judgment are not filed, the court may decide whether the petition states a cause of action.

3. SAME—SUFFICIENCY OF PLEADINGS.

Where the sufficiency of a petition, attacked on the ground that it did not state a cause of action, was not questioned by demurrer, but defendant answered, the only question presented on appeal is the sufficiency of the petition to support the judgment rendered upon it.

4. SAME — PLEADING — DEFECTS — PRESUMPTIONS.

In determining on appeal whether a petition is sufficient to support a judgment rendered upon it, all reasonable intendments are to be indulged in favor of the sufficiency of the petition.

5. SAME.

Rev. St. 1899, §§ 3522, 3523 (Ann. St. 1906, p. 2008), provide for citing a guardian or curator into the probate court on his failing to appear and make settlements. Section 3524 provides that if the guardian or curator, after such service, fail to appear and make the settlement, the court may revoke his authority and appoint a successor. In an action on the bond of a former guardian, the petition alleged that the probate court had cited the guardian to appear for having failed to make the settlements required by law, and, it appearing that he had refused ever afterwards to make the settlements, the court proceeded to appoint his successor. Held that, in view of the rule that courts of record are presumed to act rightly in all matters within their jurisdiction, the presumption must be, in aid of the pleading, that the probate court made an order ousting the guardian from office at or prior to the appointment of his successor, especially in view of Rev. St. 1899, § 672 (Ann. St. 1906, p. 686), providing that no judgment shall be reversed for omitting from the petition any allegation without proving which the verdict ought not to have been given.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by the state, on the relation of W. A. Green, against C. C. Duncan and others, on a guardian's bond. Judgment for relator, and defendants appeal. Affirmed.

Ward & Collins, for appellants. Faris & Oliver, for respondent.

NORTONI, J.

1. The first question relates to the bill of exceptions. It appears that the court made an order in term extending the time for the defendants to file their bill of exceptions in vacation. The time so extended expired on the 11th day of June. The bill not having been completed and filed within the time mentioned, defendants procured an order from the judge in vacation on the 13th day of June further extending the time to file the bill. It is well settled that a judge in vacation, or a court, for that matter, is without authority to extend the time for filing the bill of exceptions after the time theretofore extended has expired. Such extensions are valid only when made within the time theretofore extended. This has been ruled in many cases. See McHoney v. Insurance Co., 44 Mo. App. 426, in point. In this state of the record, we are precluded from looking into the bill of exceptions to the end of reviewing the case.

2. Appellants' counsel insists that, even though the bill of exceptions be not properly before the court, the judgment should be reversed for the reason the petition wholly fails to state a cause of action. Of course, this matter is always open for review, even though the motions for new trial and in arrest of judgment are not filed. The suit is on an official bond of a guardian and curator. The breach assigned is that the principal in the bond failed to account for $1,000 insurance money belonging to his several wards. It appears the...