State ex rel. Rogers v. Gage Bros. & Co.

52 Mo. App. 464

• Court: Missouri Court of Appeals
• Decided: January 16, 1893
• Status: Published

Opinions

ON MOTION TO AHSTBM.

Ellison, J.

We are asked to affirm the judgment in this cause. The appeal was taken on November 19, 1891, and time for filing bill of exceptions was extended to February 5, 1892.

Before this time expired another extension to February 15 was granted. The bill was filed within this time, and the cause was, therefore, returnable to the March term of this court. But the clerk of the circuit court, did not get the transcript made out in time to reach this court for the March term; and he did not, of course, notify appellants or appellants’ counsel of record of the completion of the transcript. By an amendment to section 2252, Revised Statutes, 1889, “the failure of the clerk to notify appellant or his attorney of record of the completion of the transcript in time to enable him to have same filed in the appellate court iu the time required by law,” shall be considered good cause for refusing to affirm the judgment of the lower court. Laws, 1891, p. 69.

Our interpretation of this section, as thus amended, is that, after an appellant directs the clerk to make out a perfect transcript he can await a notice from the clerk that the transcript is completed, and until such notice he is not in default.

II. At the time of the second extension the court added to the order the following words: “But this extension A nowise to extend time for filing transcript in the Kansas City Court of Appeals.” We are unable to perceive how this order can alter the duty of the clerk, or affect the party entitled to a performance of such duty, and to rely upon its performance. The motion to affirm is overruled.

All concur.