McCollum v. Ulen

Missouri Court of Appeals

McCollum v. Ulen

92 Mo. App. 384, 1902 Mo. App. LEXIS 485

DecidedFebruary 18, 1902

StatusPublished

This text of 92 Mo. App. 384 (McCollum v. Ulen) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCollum v. Ulen, 92 Mo. App. 384, 1902 Mo. App. LEXIS 485 (Mo. Ct. App. 1902).

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Opinion

BLAND, P. J.

Tbe final judgment in tbe cause, to reverse wbicb tbe writ of error was sued out, was rendered. [385]*385April 6, 1900, and motion for a new trial was overruled on the seventh day of April, 1900, and the case was on the same day appealed to this court, where on the fourth day of March, 1901, the appeal was dismissed.

On the twentieth day of April, 1901, the writ of'error was sued out from this court. Defendant in error moved the court to dismiss the writ on the ground that more than, one year had elapsed from the date of the final judgment to the suing out of the writ of error.

Plaintiff in error contends, in opposition to this motion, that the appeal suspended the judgment for all purposes and the time in which he might sue out his writ of error should be reckoned from the date the appeal was dismissed by this court. The statute (sec. 837, R. S. 1899) provides that:

“All writs of error upon any judgment or decision of any court in any case, whether civil or criminal, shall be brought within one year after the rendering of such judgment or decision, and not thereafter.”

The only exception made by the statute is in favor of persons under twenty-one years of age and of judgments rendered prior to the passage of the act. "While an appeal is generally held to be a continuation of a case (Macklin v. Allenburg, 100 Mo. 337, l. c. 343, and eases cited), it does not stop the execution of the judgment, unless the statutory appeal bond is given, nor destroy the judgment lien given by statute; its validity is merely held in suspense pending the appeal. It continues to be a final judgment, and if affirmed, dates from the term of court at which it was rendered. The statute is a statute of special limitations without exception as to its running save in fa.vor of minors, and we are not authorized to engraft exceptions upon it that the Legislature had the wisdom to omit. Davenport v. City of Hannibal, 120 Mo. 150.

We therefore dismiss the writ.

Barclay and Goode, JJ., concur.

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BLAND, P. J.

Tbe final judgment in tbe cause, to reverse wbicb tbe writ of error was sued out, was rendered. [385]*385April 6, 1900, and motion for a new trial was overruled on the seventh day of April, 1900, and the case was on the same day appealed to this court, where on the fourth day of March, 1901, the appeal was dismissed.

On the twentieth day of April, 1901, the writ of'error was sued out from this court. Defendant in error moved the court to dismiss the writ on the ground that more than, one year had elapsed from the date of the final judgment to the suing out of the writ of error.

Plaintiff in error contends, in opposition to this motion, that the appeal suspended the judgment for all purposes and the time in which he might sue out his writ of error should be reckoned from the date the appeal was dismissed by this court. The statute (sec. 837, R. S. 1899) provides that:

“All writs of error upon any judgment or decision of any court in any case, whether civil or criminal, shall be brought within one year after the rendering of such judgment or decision, and not thereafter.”

The only exception made by the statute is in favor of persons under twenty-one years of age and of judgments rendered prior to the passage of the act. "While an appeal is generally held to be a continuation of a case (Macklin v. Allenburg, 100 Mo. 337, l. c. 343, and eases cited), it does not stop the execution of the judgment, unless the statutory appeal bond is given, nor destroy the judgment lien given by statute; its validity is merely held in suspense pending the appeal. It continues to be a final judgment, and if affirmed, dates from the term of court at which it was rendered. The statute is a statute of special limitations without exception as to its running save in fa.vor of minors, and we are not authorized to engraft exceptions upon it that the Legislature had the wisdom to omit. Davenport v. City of Hannibal, 120 Mo. 150.

We therefore dismiss the writ.

Barclay and Goode, JJ., concur.

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92 Mo. App. 384, 1902 Mo. App. LEXIS 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccollum-v-ulen-moctapp-1902.

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