State ex rel. W. W. Kimball & Co. v. Lowder

Missouri Court of Appeals

State ex rel. W. W. Kimball & Co. v. Lowder

60 Mo. App. 143, 1895 Mo. App. LEXIS 258

DecidedJanuary 2, 1895

StatusPublished

This text of 60 Mo. App. 143 (State ex rel. W. W. Kimball & Co. v. Lowder) 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.

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State ex rel. W. W. Kimball & Co. v. Lowder, 60 Mo. App. 143, 1895 Mo. App. LEXIS 258 (Mo. Ct. App. 1895).

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Opinion

Rombauer, P. J.

The plaintiff moves to affirm the judgment of the trial court, and in support of its motion shows the following facts: The judgment was recovered on August 17, 1893, and an appeal granted defendants to this court October 24, 1893; yet the transcript of'the record was not filed in this court until September 13,1894, and until after the time when the plaintiff notified the'defendant that it would move for an affirmance of the judgment. The only cause shown by the affidavit of two of the defendants, why the judgment should not be affirmed against them, is that the. clerk never notified them or their attorney of record that he had completed the transcript of the cause until May, 1894. This statement is contradicted by the clerk’s certificate; but, even assuming it to be [144]*144true, it fails to show good cause why the judgment should not be affirmed, since it nowhere appears that either the defendants or their attorney ever ordered such transcript to be made. We have heretofore decided that, where a party appealing desires to bring up the transcript of the record, instead of filing an abstract of the record only under the provisions of section 2253 of the Revised Statutes of 1889, it is his duty to order the clerk to make out such transcript as soon as the bill of exceptions is filed, and his failure to do so, resulting in delay, is a failure to prosecute the appeal with due diligence.

It results that the plaintiff’s motion must be sustained. Judgment affirmed.

All concur.

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Rombauer, P. J.

The plaintiff moves to affirm the judgment of the trial court, and in support of its motion shows the following facts: The judgment was recovered on August 17, 1893, and an appeal granted defendants to this court October 24, 1893; yet the transcript of'the record was not filed in this court until September 13,1894, and until after the time when the plaintiff notified the'defendant that it would move for an affirmance of the judgment. The only cause shown by the affidavit of two of the defendants, why the judgment should not be affirmed against them, is that the. clerk never notified them or their attorney of record that he had completed the transcript of the cause until May, 1894. This statement is contradicted by the clerk’s certificate; but, even assuming it to be [144]*144true, it fails to show good cause why the judgment should not be affirmed, since it nowhere appears that either the defendants or their attorney ever ordered such transcript to be made. We have heretofore decided that, where a party appealing desires to bring up the transcript of the record, instead of filing an abstract of the record only under the provisions of section 2253 of the Revised Statutes of 1889, it is his duty to order the clerk to make out such transcript as soon as the bill of exceptions is filed, and his failure to do so, resulting in delay, is a failure to prosecute the appeal with due diligence.

It results that the plaintiff’s motion must be sustained. Judgment affirmed.

All concur.

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Bluebook (online)

60 Mo. App. 143, 1895 Mo. App. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-w-w-kimball-co-v-lowder-moctapp-1895.