Wyllie v. Heffernan

Missouri Court of Appeals

Wyllie v. Heffernan

58 Mo. App. 657, 1894 Mo. App. LEXIS 374

CourtMissouri Court of Appeals

DecidedSeptember 18, 1894

StatusPublished

Cited by4 cases

This text of 58 Mo. App. 657 (Wyllie v. Heffernan) 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

Wyllie v. Heffernan, 58 Mo. App. 657, 1894 Mo. App. LEXIS 374 (Mo. Ct. App. 1894).

Pincite

Opinion

Biggs, J.

The assignments of error pertain solely to matters occurring at the trial. The respondents contend that the alleged errors are not reviewable for the reason that the bill of exceptions was filed out of time. It is conceded, and the record shows, that the bill of exceptions was actually signed and filed' after the expiration of the time prescribed by order of court, and after the final adjournment of the term at which the order was made. The court undertook to cure the difficulty by ordering the bill marked as filed within the time prescribed. This the court had no power to do. The limitation of the statute (R. S. 1889, sec. 2168) can not be evaded by nunc pro tunc entries. Burdoin v. Town of Trenton, 116 Mo. 358; Dorman v. Coon, 24 S. W. Rep. 731; Wilson v. Taylor, 25 S. W. Rep. 199.

[658]*658The appellants, however, seek to avoid the legal consequences of the failure to file the bill within the current period of time by affidavits tending to show that the delay in filing the bill was attributable solely to the neglect of counsel for respondents in failing to examine and return the bill of exceptions in time to comply with the order of court. If true, this would of itself afford no excuse. The appellants should have demanded the return of the bill. Having failed to do this, they must bear the consequences. Fulkerson v. Murdock, 27 S. W. Rep. 555.

It results from the foregoing that the judgment of the circuit court must be affirmed.

All the judges concur. •

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Biggs, J.

The assignments of error pertain solely to matters occurring at the trial. The respondents contend that the alleged errors are not reviewable for the reason that the bill of exceptions was filed out of time. It is conceded, and the record shows, that the bill of exceptions was actually signed and filed' after the expiration of the time prescribed by order of court, and after the final adjournment of the term at which the order was made. The court undertook to cure the difficulty by ordering the bill marked as filed within the time prescribed. This the court had no power to do. The limitation of the statute (R. S. 1889, sec. 2168) can not be evaded by nunc pro tunc entries. Burdoin v. Town of Trenton, 116 Mo. 358; Dorman v. Coon, 24 S. W. Rep. 731; Wilson v. Taylor, 25 S. W. Rep. 199.

[658]*658The appellants, however, seek to avoid the legal consequences of the failure to file the bill within the current period of time by affidavits tending to show that the delay in filing the bill was attributable solely to the neglect of counsel for respondents in failing to examine and return the bill of exceptions in time to comply with the order of court. If true, this would of itself afford no excuse. The appellants should have demanded the return of the bill. Having failed to do this, they must bear the consequences. Fulkerson v. Murdock, 27 S. W. Rep. 555.

It results from the foregoing that the judgment of the circuit court must be affirmed.

All the judges concur. •

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58 Mo. App. 657, 1894 Mo. App. LEXIS 374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wyllie-v-heffernan-moctapp-1894.

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