Webster County v. Cunningham

• Decision Date: 17 November 1890
• Citation: Webster County v. Cunningham, 14 S.W. 625, 101 Mo. 642 (Mo. 1890)
• Parties: WEBSTER COUNTY v. CUNNINGHAM.
• Court: Missouri Supreme Court

14 S.W. 625

101 Mo. 642

WEBSTER COUNTY v. CUNNINGHAM.

Supreme Court of Missouri.

November 17, 1890.

BILL OF EXCEPTIONS — FILING AFTER TERM.

1. Under law in force in Missouri, before enactment of section 2168, (Rev. St. 1889,) a bill of exceptions filed after the closing term of the cause, without any order therefor, made during that term, is invalid, and cannot be considered on appeal.

2. By statute in Missouri, such questions of practice as the above are ruled by the law in force when the appeal was taken.

(Syllabus by the Court.)

Appeal from circuit court, Webster county.

This is an action to enforce a bond and mortgage, executed to evidence and secure a loan of the school funds of Webster county. The defense is that the obligation of the instrument was discharged by reason of facts amounting to a release of defendants as sureties in the bond. The reply put this defense in issue. The court found for defendants, and there was judgment accordingly. The other material facts are stated in the opinion.

Samuel Dickey, for appellant. R. W. Ryan and E. D. Kenna, for respondent.

BARCLAY, J.

The many interesting questions discussed in the able brief of counsel for plaintiff cannot be reached for decision because of the intervention of a formal but decisive point of practice made by defendant. The latter claims that the supposed bill of exceptions was not filed within the time required by law, and that the matters of exception disclosed in it cannot, therefore, be reviewed. The point is well taken, in view of principles recognized in former decisions on this subject. State v. Mayor, 99 Mo. 602, 13 S. W. Rep. 88; State v. Hill, 98 Mo. 570, 12 S. W. Rep. 340; Rine v. Railroad Co., 88 Mo. 401. The cause was terminated in the circuit court at the September term, 1886. The bill of exceptions was signed November 10, 1886, which is conceded by plaintiff to have been after the close of the September term. It is contended, however, that it became part of the record, by virtue of a recital in the bill itself, to the effect that, "by agreement and consent of parties and the court, sixty days from last day of September term, 1886, is allowed for preparation and presenting of this bill of exceptions." It nowhere appears, in the bill or elsewhere, when this agreement was made, or when the court or judge consented, or that any order of court on the subject ever existed. Whether a recital in the bill alone, (as distinguished from the record proper,) filed after the...