School District No. 1 v. Boyle

88 S.W. 136, 113 Mo. App. 340, 1905 Mo. App. LEXIS 218

• Court: Missouri Court of Appeals
• Decided: June 19, 1905
• Status: Published

Opinion

NORTONI, J.

(after stating the facts). — It has frequently been decided in this State that unless the bill of exceptions is filed within the time granted by the Court for that purpose, it will not be noticed in the appellate court. [State v. Harris, 121 Mo. 445, 26 S. W. 558; Butler County v. Graddy, 152 Mo. 441, 54 S. W. 219; Dorman v. Coon, 119 Mo. 68, 24 S. W. 731; Girdner v. Bryan, 94 Mo. App. 27, 67 S. W. 699; State v. Britt, 117 Mo. 584, 23 S. W. 771; State v. Apperson, 115 Mo. 470, 22 S. W. 375; State v. Scott, 113 Mo. 559, 20 S. W. 1076.]

It has also been frequently decided that in cases of this kind, there must be a showing in the record proper and aliunde the bill of exceptions itself, to the effect that time has been granted to file the bill of exceptions and-it must appear that such bill was filed .within the time limit granted by the court. [Pepperdine v. Hymes, 92 Mo. App. 464; Lucas v. Huff, 92 Mo. App. 369; Jordan v. C. & A. Ry. Co., 92 Mo. App. 81; Williams v. Harris, — Mo. App. —; Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825; St. Charles v. Deemer, 174 Mo. 122, 73 S. W. 469; Western Storage Co. v. Glasner, 150 Mo. 426, 52 S. W. 237; Walser v. Wear, 128 Mo. 652, 31 S. W 37; State v. Harris, 121 Mo. 445, 26 S. W. 558.]

All of the authorities hold that the statement contained in the bill of exceptions itself to the effect that the bill is filed in due time, etc., is insufficient for the reason that the bill cannot be permitted to prove itself. We must therefore hold that the recital in the bill of exceptions in this case to the effect that the time had been extended for its filing was insufficient to supply the record in that respect. [Western Storage Co. v. Glasner, 150 Mo. 426, 52 S. W. 237; Walser v. Wear, 128 Mo. 652, 31 S. W. 37; St. Charles v. Diemer, 174 Mo. 120, 73 S. W. 469; Ricketts v. Hart, 150 Mo. 64, 51 S. W. 825; Lawson v. Mills, 150 Mo. 428, 51 S. W. 678; Williams v. Harris, — Mo. App. —; Jordan v. Railroad, 92 Mo. App. 81; Lucas v. Huff, 92 Mo. App. 369.] This being the adjudicated law on the subject, the bill of exceptions must be stricken from the record and as there is no bill before us presenting the evidence and matters of exception had upon the trial, there is nothing to be reviewed by this court other than the record proper. [Lucas v. Huff, 92 Mo. App. 369; Pepperdine v. Hynes, 92 Mo. App. 464; Lawson v. Mills, 150 Mo. 428, 51 S. W. 678; Walser v. Wear, 128 Mo. 652, 31 S. W. 37; Butler County v. Graddy, 152 Mo. 441, 54 S. W. 219.]

There are no assignments in appellant’s brief leveled against the record proper in this case. The only reasons which he urges for reversal of the judgment are the matters of exception contained in the bill which has been stricken from the files,' and they are no longer before us for observation.

It affirmatively appearing on the record that the bill of exceptions in this case was filed ont of time and without authority, it should be treated as equivalent to the filing of no bill at all and thereupon respondent is entitled to an affirmance of the judgment. [Jordan v. Railroad, 92 Mo. App. 81.]

The judgment of the trial court is therefore affirmed.

All concur.