State v. Ryan

• Decision Date: 01 October 1893
• Citation: 120 Mo. 88,25 S.W. 351
• Parties: STATE v. RYAN et al.
• Court: Missouri Supreme Court

25 S.W. 351

120 Mo. 88

STATE v. RYAN et al.

Supreme Court of Missouri.

October 1, 1893.

BILL OF EXCEPTIONS — TIME OF FILING.

Under Rev. St. 1889, § 2168, providing that a bill of exceptions may be filed during the term at which it is taken, or within such time thereafter as the court may by order allow, which may be extended in vacation for good cause shown, or within the time the attorneys may "thereafter" agree upon, an order of the court first extending the time beyond the term is an essential condition to an extension by the attorneys. Black, C. J., and Gantt, J., dissenting.

In banc. Appeal from St. Louis criminal court; Rudolph Hirzel, Special Judge.

Cornelius Ryan was convicted of murder and William Murphy of manslaughter. Both appeal. Affirmed.

Charles P. & J. D. Johnson and Charles T. Noland, for appellants. R. F. Walker, Atty. Gen., and C. O. Bishop, for the State.

PER CURIAM, (BRACE, BARCLAY, SHERWOOD, and BURGESS, JJ.)

After the announcement of the decision reported in 22 S. W. 486, the case was transferred to the court in banc by reason of the dissent of one of the judges in the second division upon the motion for rehearing. It has been reargued before all the judges. The court approves the action of the second division, with these further observations:

The amendment which was ingrafted upon the law of 1885 by section 2168 of the revision of 1889 was intended to regulate one general subject, namely, the mode of obtaining a further extension of time to file a bill of exceptions after the lapse of the term at which an appeal is taken, where the extension has first been secured at that term to a date beyond it. But the amendment did not purport to eliminate any part of the law of 1885 (Sess. Laws 1885, p. 215, § 1) which expressly required the sanction of the court to give validity to a bill of exceptions filed after the final term of the proceedings in any cause. Webster Co. v. Cunningham, (1890,) 101 Mo. 642, 14 S. W. 625. It merely added certain facilities for longer extensions to be made after the term of the judgment had expired. By the language of section 2168 a further expansion of time is obtainable either by leave of the court or judge upon a showing of good cause without the consent of the adverse party, or with such consent, (or that of the attorneys,) evidenced by writing, irrespective of the action of the court or judge. Prior to this law it had been definitely held that such a stipulation of counsel, after the term of the final judgment, was ineffectual to enlarge the time allowed to file such a bill, (West v. Fowler, [1875,] 59 Mo. 40;) so that the change of 1889 certainly relaxed the rigidity of the existing law on that point. But does the act carry in its terms any purpose to wholly dispense with the consent or approval of the court, in the first instance, to the prolongation of the life of the cause after the lapse of the term when it would ordinarily close? We think not. If such had been its design, the word "thereafter," where it occurs in the new matter of 1889, would surely have been omitted. That adverb plainly refers to the making of the order of court extending time beyond the judgment term, and clears away any doubt that otherwise there might be of the meaning intended by the lawgiver. It unfolds very plainly the idea that where the court has once sanctioned the making of the bill beyond the term, a written agreement of parties (or of their counsel) may "thereafter" still further extend the time. But that word would be wholly meaningless if counsel had from the start full control of the making of the record of court for a subsequent term without the sanction of the court itself in the first place. It is a canon of interpretation that all the words of a law should be given force, rather than that any part of it should be obliterated by construction. Applying this guide, we see that the word "thereafter" must now be ignored, or, rather, written out of the law, in order to arrive at the meaning contended for by defendants' counsel. But we think that word was intended to play a part in expressing the legislative thought; and that some, rather than no, significance should be ascribed to it. We furthermore consider that construction of the law the more reasonable and natural one, and that it (more than the converse reading proposed) will conduce to the orderly, safe, and regular administration of justice. As the question of present concern is simply what construction should be placed on the language of our own statute, we do not consider it needful to examine the ancient history of bills of exceptions, or the exact terms of the statute of Edw. I. on the subject. We therefore adhere to the conclusion heretofore reached in the second division, affirming the judgment of the trial court.

BLACK, C. J., and GANTT, J., dissenting.

SHERWOOD, J., (concurring.)

Considering the importance of the subject, the cases and the statutes which have been reviewed in the minority opinion, I have deemed it best to add a few additional observations. Our early statute touching the point in hand, as appears from St. 1835, was the following: "Sec. 20. Whenever, in the progress of any trial, in any civil suit depending in any court of record, either party shall except to the opinion of the court and shall write his exception, and pray the court to allow and sign the same, the person or persons composing the court, or the major part of them, shall (if such bill be true,) sign the same; and if they refuse to sign such bill on account that it is untrue, they shall certify thereon, under their hands, the cause of such refusal." St. 1835, p. 464. The statute, as above set forth, remained the same in 1845. See Revised Statutes of Missouri of that year, page 820, § 25. The statutory rule thus laid down was, however, so far relaxed in practice that it was held that upon consent of parties, entered of record, the trial court might grant permission to file a bill of exceptions in vacation. This relaxation of the rule, and its precise limits, are accurately set forth in State v. McO'Blenis, 21 Mo. 272, and in Mentzing v. Railroad Co., 64 Mo. 25. Other cases speak of consent of parties entered of record to the filing of a bill of exceptions, but in a vague way. What they evidently mean is the rule as above indicated. In 1849, under the provisions of the New Code, it was provided that "exceptions may be taken to the opinions of the circuit court, during the progress of any civil action, and bills of exceptions shall be allowed, signed, and made a part of the record, in the manner as heretofore," (Laws 1849, p. 93;) thus giving a legislative sanction to the prior rulings of this court on the point in hand. Under the rulings aforesaid, of course the court was powerless to grant, by entry of record, permission to one of the parties litigant to file a bill of exceptions in vacation, unless with the consent of the adverse party. Nor could such parties make any entry of record without the permission of the court. Thus the law was until the revision of 1855, when the legislature made a change in the law as it then stood, by providing that "such exception may be written and filed at the time, or during the term of the court at which it is taken, and not after." Rev. St. 1855, p. 1264. Notwithstanding this rigid and restrictive legislative provision, bills of exceptions continued, by permission of court, and the consent of parties, to be filed in vacation as before. Blankenship v. Railroad Co., 48 Mo. 376; West v. Fowler, 55 Mo. 300; Dinwiddie v. Jacobs, 82 Mo. 195. Then, by some singular judicial aberration, it was solemnly decided by this court that, unless the consent of the trial court affirmatively appeared to the order granting permission to file the bill of exceptions in vacation, no validity would attach to such a bill thus filed, notwithstanding the record showed consent of both parties to the extension. Spencer v. Railroad Co., 79 Mo. 500, and cases cited. Thus matters remained until the Rine Case came up to this court for determination. 88 Mo. 392. There the entry showed that "on motion of said defendant, and by consent of plaintiff, leave is given said defendant to file its bill of exceptions thirty days after this term." And it was seriously urged by plaintiff in that case that "the record shows consent only of plaintiff for defendant to file its bill of exceptions in this case;" but it was ruled that "the very fact that the court made the order sufficiently shows its consent thereto," etc. It was upon this basis that I made the remarks in the concurring opinion already attributed to me, in which I distinctly recognized that two things were requisite in extending the time for filing a bill of exceptions: (1) An order of record extending the time; (2) which order should include the consent of the parties litigant, as the groundwork in, and recitals of, such order; and that the consent of the court ex vi termini was implied in the fact that the order was made at all.

As shown by some of the cases cited, and by many others, very often controversies over the validity of bills of exceptions arose because an order for extension of time was made by the court upon the application alone of the losing party, and without the consent of his adversary, and such order was held invalid, and likewise the bill. Mentzing v. Railroad Co., 64 Mo. 25, and cases cited; Dinwiddie v. Jacobs, 82 Mo. 195. In this posture of affairs the act of 1885 was enacted, which substitutes for the words quoted from the revision of 1855 this language: "Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as the court may, by an order of record allow." Laws 1885, p. 215. It will be noted that this change eliminates any necessity for consent of parties, but permits an extension of time to be granted to "such time thereafter as the court may by entry of...