West v. Fowler

• Decision Date: 31 January 1875
• Citation: West v. Fowler, 59 Mo. 40 (Mo. 1875)
• Parties: JOHN W. WEST, Plaintiff in Error, v. WHITLEY F. FOWLER, Defendant in Error.
• Court: Missouri Supreme Court

59 Mo. 40

JOHN W. WEST, Plaintiff in Error,

v.WHITLEY F. FOWLER, Defendant in Error.

Supreme Court of Missouri.

January Term, 1875.

Error to Miller Circuit Court.

Lay & Belch, with E. L. Edwards & Son, for Plaintiff in Error.

Ewing & Smith, for Defendant in Error.

SHERWOOD, Judge, delivered the opinion of the court

This cause is again before us on a re-hearing, granted by a majority of the court at the last term.

There were two grounds upon which the former opinion was based: 1st, that the consent of the parties did not appear from the record entry extending the time to December the 1st, 1871; 2d, that the bill of exceptions was not filed within the time designated, and that the written agreement indorsed on the bill to prolong the time, could not have that effect, as it formed and constituted no part of the record.

The first ground above specified has been obviated by an entry nunc pro tunc; so that as the record now stands, by consent of parties, leave was given to file the bill by the 1st day of December, 1871; leaving the second ground of objection still remaining in all of its original force. And a re-examination of the questions heretofore discussed, (see West vs. Fowler, 55 Mo., 300) has not induced the slightest change in our views or produced any inclination whatever to depart from wisely established and long settled precedent.

In Ruble vs. Thomasson, (20 Mo., 263) what purported to be a bill of exceptions was filed at a term next after the trial, and, indorsed on the bill, was an agreement by the opposing counsel, that the bill might be filed nunc pro...