Downing v. Shacklett

49 Mo. 86

• Court: Supreme Court of Missouri
• Decided: October 15, 1871
• Status: Published

Opinion

Bliss, Judge,

delivered the opinion of the court.

In this case an abortive attempt was made to make a bill of exceptions by the affidavits of bystanders. Besides other irregularities, it does not seem to have'been made until one year (two terms) after final judgment, and no reason is offered for the delay. The statute requires that it be made and signed at the term, but by consent of parties it may be postponed. In this Case it .was postponed by consent until vacation, but that can give no warrant for making it up at a later date. The bill is signed by bystanders, and is made part of the record, and a certified copy sent up, yet it does not appear that the judge permitted it to be filed, or made any certificate in regard to it. The statute is plain. If the judge refuses to sign the bill, and permits one signed by bystanders to be filed, the record should show it, and in that case it becomes part of the record. If he refuses permission, the reason should be stated, and the bill does not become part of the record, but the original paper is sent up, supported by copies of the affidavits filed in its support. (Gen. Stat. 1865, ch. 169, §§ 29-33 ; Wagn. Stat. 1044; Bowen v. Lazalere, 44 Mo, 383.) The record proper is defectively given, being mixed up with the bill of exceptions, but by searching the mass of copies for entries its deficient parts can be put together, and I find no error in it.

Judgment affirmed.

The other judges concur.