State v. Wilson

Missouri Court of Appeals

State v. Wilson

44 Mo. App. 136, 1891 Mo. App. LEXIS 112

DecidedFebruary 24, 1891

StatusPublished

This text of 44 Mo. App. 136 (State v. Wilson) 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.

Bluebook

State v. Wilson, 44 Mo. App. 136, 1891 Mo. App. LEXIS 112 (Mo. Ct. App. 1891).

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Opinion

Biggs, J.

Upon the record now before us we cannot consider what purports to be a bill of exceptions. By numerous decisions of this court, and also of the supreme court, the rule of practice has been established that, where a bill of exceptions is filed in term time, there must be some recital in the record proper that it is filed ; and that, when it is filed in vacation, there must be a recital of record in term time that leave was given by the court to file it in vacation, and also a file mark or recital by the clerk showing that it was filed within the time granted. Dinwiddie v. Jacobs, 82 Mo. 195 ; Pope v. Thomson, 66 Mo. 661 ; Eau Claire Lumber Co. v. Howard, 76 Mo. 517; McGrew v. Foster, 66 Mo. 30; Fulkerson v. Houts, 55 Mo. 301 ; Carter v. Prior, 78 Mo. 222 ; State ex rel. v. Leslie, 83 Mo. 60 ; Roesler [137]*137v. Bank, 88 Mo. 565 ; State v. McNamara, 100 Mo. 105. In this case there is nothing in the record proper showing that the paper which purports to be a bill of exceptions was filed in term time, or that leave was given to file it in vacation. The paper only contains a file mark by the clerk. That is not sufficient.

As no point is made on anything growing out of or appearing from the record proper, we will have to affirm the judgment. All the judges concurring, it is so ordered.

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Biggs, J.

Upon the record now before us we cannot consider what purports to be a bill of exceptions. By numerous decisions of this court, and also of the supreme court, the rule of practice has been established that, where a bill of exceptions is filed in term time, there must be some recital in the record proper that it is filed ; and that, when it is filed in vacation, there must be a recital of record in term time that leave was given by the court to file it in vacation, and also a file mark or recital by the clerk showing that it was filed within the time granted. Dinwiddie v. Jacobs, 82 Mo. 195 ; Pope v. Thomson, 66 Mo. 661 ; Eau Claire Lumber Co. v. Howard, 76 Mo. 517; McGrew v. Foster, 66 Mo. 30; Fulkerson v. Houts, 55 Mo. 301 ; Carter v. Prior, 78 Mo. 222 ; State ex rel. v. Leslie, 83 Mo. 60 ; Roesler [137]*137v. Bank, 88 Mo. 565 ; State v. McNamara, 100 Mo. 105. In this case there is nothing in the record proper showing that the paper which purports to be a bill of exceptions was filed in term time, or that leave was given to file it in vacation. The paper only contains a file mark by the clerk. That is not sufficient.

As no point is made on anything growing out of or appearing from the record proper, we will have to affirm the judgment. All the judges concurring, it is so ordered.

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44 Mo. App. 136, 1891 Mo. App. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wilson-moctapp-1891.

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