Maddox v. Wabash Railroad

73 Mo. App. 510, 1898 Mo. App. LEXIS 104

• Court: Missouri Court of Appeals
• Decided: February 1, 1898
• Status: Published

Opinions

Biggs, J.

The point is made by the respondent that the bill of exceptions in this ease was filed out of time. By consent of counsel we have the original bill before us. The defendant was granted leave to file bill on or before January 19, 1897. The indorsements on the bill are as follows:

PlíateTIhní ofpexceptions: filing.

“Filed February 10th by consent of Joseph Boyd as filed January 38th, 1897.

“P. M. Moeeis,

“Clerk.”

Another indorsement is as follows:

“Now on this 10th day of Eeb., 1897, comes defendant by attorney Creo. Robertson and files this bill of exceptions with the following indorsement of Joseph Boyd thereon, to wit: ‘So far as I am concerned I consent to filing as of the 18th day of January, 1897.

“ ‘Joseph Boyd.’

“P. M. Moeeis,

“Clerk.”

Attached to the bill is a statement of the clerk of date September 10, 1897, to the effect that the last mentioned indorsement, and that portion of the first indorsement in italics, were written by him' after the bill was filed at the request of the attorney for the respondent, and that the original file mark was “Piled January 18th, 1897. P. M. Morris, Clerk.”

Upon the face of the record the bill of exceptions was not filed within the leave granted by the court, that is, it was filed on the tenth day of February as of January 18. It the case of Wyllie v. Hefferman, 58 Mo. App. 657, we decided that the limitation of the statute as to filing bills of exceptions could not be evaded by a nunc pro tune entry. To the same effect is Burdoin v. Trenton, 116 Mo. 358.

According to the statement of the clerk, his original indorsement on the bill read “Piled January 18th, 1897,” and that the other matter appearing on the bill was subsequently written by him at the request of the attorney for plaintiff. ■ The difficulty is that this statement of the clerk can not be received in this court to contradict the record as made. Wilson v. Taylor, 119 Mo. 626.

The fact that one of the plaintiffs consented to the filing of the bill is of no consequence. After the expiration of the time for filing a bill of exceptions it is beyond the power, either of the parties or of the court, or of both combined, to further extend the time or to consent that the record may be made up out of time. Dorman v. Coon, 119 Mo. 68. We are therefore compelled to decide that the bill of exceptions forms no part of the record in this ease. As the assignments pertain to matters of exception only, the judgment of the circuit court will be affirmed.

Judge Bom> concurs; Judge Bland dissents.