Ziefle v. Seid
| Decision Date | 09 February 1897 |
| Citation | 38 S.W. 963,137 Mo. 538 |
| Parties | Ziefle et al., Appellants, v. Seid |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. E. J. Broaddus, Judge.
Affirmed.
Chapman & Davis and Sheetz & Wait for appellants.
Miller Brothers for respondent.
(1) To appeal under section 2253, Revised Statutes 1889, the certified copy of judgment and record entries and order granting appeal, must be filed in the office of the clerk of the supreme court fifteen days before the first day of the return term. Rodney v. Bryne, 1 Mo. 742; Boggs v. Ins. Co., 31 Mo. 499; Caldwell v. Hawkins, 46 Mo. 263; In re Drake Estate, 7 Mo.App. 512; Ellis v. Wyett, 10 Mo.App. 580; Kumwick v Castleman, 21 Mo.App. 592; Snyder v. Free, 102 Mo. 325; Thompson v. Allen, 107 Mo. 479; R. S. 1889 sec. 2252; Laws 1891, p. 69; Land & Inv. Co. v Martin, 125 Mo. 115. (2) Laws of 1891, page 69, amending section 2252, Revised Statutes 1889, was not designed to prevent an affirmance where the delay in filing the transcript was due to the negligence of appellants or of their counsel. Beckman v. Ins. Co., 52 Mo.App. 343; Messick v. Fairburn, 52 Mo.App. 69. (3) Appeal was perfected on the twentieth day of January, 1895, when the bill of exceptions was filed, and was more than sixty days before the April term of the supreme court of 1895, and was returnable to said April term of said court. Art. 6, const., sec. 9; sec. 2252, R. S. 1889; Laws 1891, p. 69; Hicks v. Hoos, 44 Mo.App. 571; Messick v. Fairburn, 52 Mo.App. 69; Land & Inv. Co. v. Martin, 125 Mo. 115. (4) The clerk was not compelled to make out any transcript in this case until notified by appellants or their attorneys which they desire, a perfect transcript or certified copy of record entries. In this case, they chose the latter, and it was immediately made out. They are in default. Messieck v. Fairburn, 52 Mo.App. 70.
OPINION
Per Curiam (Barclay, P. J., and Macfarlane, Robinson, and Brace, JJ).
Defendant has moved to affirm, because the certificate of judgment and appeal (filed by appellant in the supreme court under section 2253) was filed too late.
The facts on that point are as follows:
December 6, 1894, appeal allowed.
January 20, 1895, bill of exceptions filed.
August 29, 1895, certified copies of judgment, etc., filed in supreme court.
November 18, 1896, service on defendant of plaintiffs' abstract of record.
December 15, 1896, motion by defendant to affirm.
The motion to affirm was at first overruled, but a rehearing on that motion was allowed. We now conclude that it should be sustained.
When the motion was made, the cause had been set down for a hearing, January 7, 1897. Defendant filed an abstract and brief on the merits, January 18, 1897, as well as an earlier separate brief in December last (solely upon the motion to affirm), and a fuller one upon the rehearing of that motion.
The plaintiffs' counsel, with entire frankness, admit that "the appeal should have been perfected by transcript at the April term," 1895, and assign as cause for the delay "press of business," conceding "legal negligence" in that matter. But they resist the motion to affirm because the latter was not brought on until after the case was set for hearing and appellants had gone to the expense of preparing and printing abstracts and briefs, and of filing them in court.
Plaintiffs also object to the motion for want of the required transcript to secure an affirmance. This latter objection is, however, plainly untenable, as defendant (with his original motion to affirm) submitted also the certificate specified by section 2252. So nothing further need be said on that point.
But the first mentioned objection is of greater weight, and it may be well to state our reasons in disposing of it.
The substance of plaintiffs' claim is that defendant, respondent, should have moved more promptly for the affirmance, and that having failed to do so (until plaintiff had gone to some expense upon a supposition that the appeal was to be heard on its merits) the court should not now favorably entertain the pending motion.
The statute law requires the appellate court to affirm, in the circumstances described by section 2253, "unless good cause to the contrary be shown." It is admitted that no good cause has been given for the failure to file in due time the transcript (or, in this instance, the certificate). But it certainly would be "good cause" against affirmance if a waiver, in respect of the matter of time, was shown. The question here is whether the facts aforesaid establish any waiver.
We do not regard the omission to move for an affirmance, until the hearing is near at hand, as constituting, of itself, a ground to deny such a motion. Adopting the language of Judge Elliott in his treatise on Appellate Procedure (1 Ed., sec. 249), "A party against whom an appeal is assumed to be taken in term has a right to presume that it is waived or abandoned, unless the party who assumes to prosecute the appeal does what the statute requires, and this assumption authorizes him to remain inactive."
There is nothing in the Missouri law to suggest that delay in moving for the affirmance will cure delay of the appellant in following the requirements of section 2252 (). That section seems imperative, and this court certainly has no desire to avoid enforcing it. Its purpose is to expedite the hearing and disposition of causes on appeal. No doubt, parties may (to some extent and in some circumstances) waive the advantages of the statute. But we hold that lapse of time alone does not avert all the statutory...
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