State v. Ryan

22 S.W. 486, 120 Mo. 88, 1894 Mo. LEXIS 99

• Court: Supreme Court of Missouri
• Decided: February 5, 1894
• Status: Published

Opinions

Sherwood, J.

The defendants were jointly indicted for murder in the first degree, and on trial at the May term, 1892, Ryan was on June 25 convicted of murder in the second degree and Murphy of manslaughter in the third degree; the punishment of the former being at ten years, and of the latter at two years, in the penitentiary.

They filed their motion for a new trial June 30, 1892, which was denied at the July term andón the sixteenth day of that month. On July 20, 1892, and during the same term their motion in arrest was filed and also denied on the twenty-first day of July, and they were sentenced on the same day, and on the same day they were granted an appeal, and an order made that such appeal should operate as a supersedeas, etc.

On September 30, 1892, on the next day to the last of the July term, the parties stipulated in writing that the time for filing the bill of exceptions be continued and that the same might be filed at any time during the next term of the court. At the next, the October term, 1892, to wit, November 5, 1892, the parties filed another like stipulation that the time of filing the bill of exceptions might be continued and the same filed at the next term of the court. At the-November term a like stipulation was filed by the parties on the twenty-ninth day of December, 1892, making provision continuing the time of filing such bill to January 15, 1893, and that the same might be filed within that time. The bill was signed and filed January 7, 1893.

There is nothing in the record showing an order of court extending the time for filing the bill of exceptions beyond the time at which it was taken, consequently, the stipulations filed from time to time must go for nothing. The statute is express that the bill “may be filed at the time or during the term * * * at which it is taken, or within such time thereafter as the court may by an order entered of record allow ” etc. R. S. 1889, sec. 2168.

An order of court extending the time for filing beyond the terna is just as essential to the validity of a bill under the amendatory statute, as it was under the practice which had previously prevailed and of which the statute is but declaratory. State v. Berry, 103 Mo. 367, and cases cited.

In consequence of the foregoing, there is no bill of exceptions before us for consideration, and as there is no error in the record proper, judgment affirmed.

All concur.

IN BANG.

Per Curiam

(Brace, Barclay, Sherwooí» and Burg-ess, JJ.). — After the announcement of the decision reported in 22 S. W. Rep. 486, the case was transferred to the court in lane by reason of the dissent of one of the judges in the second division upon the motion for rehearing. It has been reargued before all the judges. The court approves the action of the second division’, with these further observations:

The amendment which was engrafted upon the law of 1885, by section 2168 of the revision of 1889, was intended to regulate one general subject, namely, the mode of obtaining a further extension of time to file a bill of exceptions after the lapse' of the term at which an appeal is taken, where the extension has first been secured at that term to a date beyond it. But the amendment did not purport to eliminate any part of the law of 1885 (Sess. Laws, 1885, p. 215, sec. 1), which expressly required the sanction of the court to give validity to a bill of exceptions filed after the final term of the proceedings in any cause. Webster Co. v. Cunningham (1890), 101 Mo. 642. It merely added certain facilities for longer extensions to be made after the term of the judgment had expired.

By the language of section 2168 a further expansion of time is obtainable either by leave of the court or judge, upon a showing of good cause without the consent of the adverse party, or with such consent (or that of the attorneys), evidenced by writing, irrespective of the action of the court or judge.

Prior to this law it had been definitely held that such a stipulation of counsel, after the term of the final judgment, was ineffectual to enlarge the time allowed to file such a bill. West v. Fowler (1875), 59 Mo. 40. So that the change of 1889 certainly relaxed the rigidity of the existing law on that point.

But does the act carry in its terms any purpose to wholly dispense with the consent or approval of the court, in the first instance, to the prolongation of the. life of the cause after the lapse of the term when it would ordinarily close? We . think not. If such had been its design the word “thereafter” (where it occurs in the new matter of 1889) would surely have been omitted. That adverb plainly refers to the making of-the order of court, extending time beyond the judgment term; and clears away any doubt, that otherwise there might be, of the meaning intended, by the lawgiver. It unfolds very plainly the idea that, where the court has once sanctioned the making of the bill beyond the term, a written agreement of parties (or of their counsel) may “thereafter” still further extend the time. But that word would be wholly meaningless if counsel had, from the start, full control of the making of the record of court for a subsequent term without the sanction of the court itself in the first place.

It is a canon of interpretation that all the words of a law should be given force rather than that any part of it should be obliterated by construction. Applying this .guide, we see that the word “thereafter” must now be ignored, or, rather, written out of the law, in order to arrive at the meaning contended for by defendant’s ■counsel. But we think that word was intended to play a part in expressing the legislative thought; and that some, rather than no, significance should be ascribed to it. We furthermore consider that construction of the law the more reasonable and natural one; and that it (more than the converse reading proposed) will conduce to the orderly, safe and regular administration of justice.

As the question of. present concern is simply what construction should be placed on the language of our own statute, we do not consider it needful to examine the ancient history of bills of exceptions in England or the exact terms of the statute of Edward the First on the subject.

We therefore adhere to the conclusion heretofore reached in the second division, affirming the judgment of the trial court.

Black, C. J., and Gantt, J., dissenting.