Smith v. Hannibal & St. Joseph Railroad

55 Mo. 601

• Court: Supreme Court of Missouri
• Decided: February 15, 1874
• Status: Published

Opinion

Adams, Judge,

delivered the opinion of the court.

This was an action in the nature of a bill in Chancery for title to a tract of land.

A bill of exceptions was presented to the judge who tried the case, to be signed by him; but he refused to sign it on the alleged ground that it was not true in regard to certain instructions which the bill contained, under § 29, 2nd Wagn. Stat., 1044. The judge certified thereon the cause of his refusal, and thereupon, each party filed affidavits in regard to the matter in the bill of exceptions, alleged to be untrue; one in support of it, and the other against it.

The practice act (2 Wagn. Stat., 1044, § 30,) prescribes, that if the judge refuses to sign a bill of exceptions on the ground that it is not true, such bill may be signed by three bystanders. Whén a bill of exceptions is signed by bystanders and the court still refuses to suffer it to be filed, each party may file affidavits in support of and against the truth of such bill, and the Supreme Court will settle the question as to its truth.

But there can be no bill of exceptions at all, unless it be signed either by the judge of the court or by bystanders. This bill of exceptions was not Signed at all and must be regarded as a nullity. There being no bill of exceptions, we can only look to the recoil proper for errors.

I find none in the record for reversal of the judgment.

Judgment affirmed.

All the judges concur.