Linahan v. Barley

28 S.W. 84, 124 Mo. 560, 1894 Mo. LEXIS 321

• Court: Supreme Court of Missouri
• Decided: November 12, 1894
• Status: Published

Opinion

Babclay, J.

Plaintiff had judgment in the circuit court for possession of a parcel of land in Lincoln county.

The pleadings are in the ordinary form, appropriate to the action of ejectment under our statute. R. S. 1889, secs. 4631, 4632.

The cause was tried before Judge Hughes and a jury.

Defendants took steps for a review, after their motion for a new trial was denied. At the September term, 1891, they obtained leave, September 30, to file a bill of exceptions “in sixty days.” The bill was signed by the judge, November 30,1891.

The record on this appeal has not been amended since it came into this court, and we are bound to assume its recitals of facts, as above, to be correct.

It is very plain that the sixty days allowed defendants to tender their bill of exceptions, expired with the twenty-ninth day of November. This is obvious from the language of the statute governing computations of time. R. S. 1889, sec. 6570; Fulkerson v. Murdoch (1894), 123 Mo. 292.

It does not appear, from the bill of exceptions, or elsewhere in the record, that the bill reached the judge in season. We can not assume that it did, in face of the fact that he allowed and signed it after the time had expired.

The language of our positive law touching bills of exceptions is not obscure on this point of procedure. It is clear enough. R. S. 1889, sec. 2168.

Moreover, its meaning has been frequently declared in decisions of the court and of the separate divisions.

If it is desirable to relax the stringency of the present statutes on the subject, the lawmaking authority is the body to act in that direction.

It is our duty to declare the law as it is written. On the precise point of present. concern, it is too well settled by precedents to permit a doubt as to its purport.

Unless a bill is presented in time, it can not be considered on appeal. State v. Berry (1891), 103 Mo. 367; State v. Apperson (1893), 115 Mo. 470; State v. Ryan (1894), 120 Mo. 88.

The bill in this case was filed too late to acquire a place as part of the authentic record of the cause.

Defendants claim, however, that plaintiff waived his right to urge the invalidity of the bill of exceptions, beeanse that point was not made on the first hearing in this court. But a rehearing was granted; and, on the final submission of the cause at the present term, the plaintiff, respondent, insists that the judgment should be affirmed for the reasons above discussed.

In view of the facts furnished by the record before us, there is no alternative hut to sustain that contention.

When a rehearing is granted in this court, the parties are entitled to deal with the cause upon the record as it stands when' it is finally submitted for decision; at least so far as concerns the question considered in this opinion. Danforth v. Railroad (1894), 123 Mo. 196.

No errors are assigned or suggested in any of the proceedings of the trial court, preserved by the record proper.

The judgment is affirmed.

Black, C. J., and Brace and Macearlane, JJ., concur.