15 Mo. App. 272 | Mo. Ct. App. | 1884
Lead Opinion
delivered the opinion of the court.
This was a motion for an execution against a stockholder. The court awarded an execution for $95 only, thereby charging the stockholder in respect of a single share of stock. From this ruling the plaintiff has prosecuted an appeal. We are prevented from considering the merits of the controversy by three insuperable difficulties, which relate to the manner of making up the record, and to the time of signing the bill of exceptions and of taking the appeal.
I. The motion is not incorporated into the bill of exceptions. This has always been held to be such a defect in the record as will prevent the terms of - the motion from being considered ; for a motion in a cause is no part of the record proper, and can only be made matter of record by being certified by the judge in the bill of exceptions. Merchants’ Ins. Co. v. Hill, 12 Mo. App. 148, 155. But, as we held in the case just cited, this would not necessarily
Before dismissing this point, I shall take the liberty, for myself, to say that the rule of practice which we feel bound to follow in this case is, in my opinion, destitute of any foundation in good sense. The supreme court, in the recent case of Allen v. Benton, 79 Mo. 165, have gone very far towards establishing the doctrine that these motions against stockholders are in the nature of independent actions ; and if that court can go further, and lay down the rule, that for the purpose of reviewing such proceedings on appeal, the motion, the notice to the stockholder, the subsequent pleadings, and the entry of the order of the court awarding or denying execution, are to be regarded as parts of the record proper, it will simplify proceedings and prevent failures of justice. It seems to me that this record is made up in this respect in a manner which ought to satisfy any sound rule of procedure. The clerk has set out the motion, the notice to the stockholder, the return thereon, the answer of the stockholder, the reply of the plaintiff, and the judgment or order of the court awarding execution, as though they were parts of the record proper. Then follows the bill of exceptions, just as in the record of an ordinary action. But we understand the rule to be as above stated; and we have no jurisdiction to change the settled rules of procedure.
The statute enacts that “ such exception may be written and filed at the time or during the term of the court at which it is taken, and not after. All exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions.” Rev. Stats., sect. 3636. Under this statute, the decisions of the supreme court and of this court have been uniform to the effect that a bill, of exceptions signed after the lapse of the term at which the judgment was rendered, can not be considered on appeal, except in two cases: 1. Where it has been so signed by consent of the parties, which . consent must appear of record. West v. Fowler, 55 Mo. 300 ; s. c. 59 Mo. 40 ; Mentzing v. Pac. R. Co., 64 Mo. 25 ; Robart v. Long, 65 Mo. 223 ; Baker v. Loring, Id. 527 ; The State v.
From the foregoing, it appears : 1. That there is no appeal to this court which gives us jurisdiction to consider the merits of the controversy. 2. That if there were such an appeal, there is no record here which can be considered at all. There is no record proper, because such a thing is unknown in this proceeding by motion; and there is no bill of exceptions, because what purports to be such was not signed within the time allowed by law. It follows that there is nothing before us upon which we can exercise any jurisdiction, except to dismiss the appeal. It is accordingly ordered that the appeal be dismissed.
Rehearing
delivered the opinion of the court on motion for rehearing.
The opinion already delivered shows that we find it impossible to examine the merits of this controversy for three
We are now asked to grant a rehearing on the ground that our first ruling is in conflict with the recent decision of the supreme court in Allen v. Benton (79 Mo. 165). We had a certified copy of that decision before us, and examined it carefully before our opinion was written, and found that there was nothing in it that overturned, or even touched upon, the rule of practice which has long been settled in this state, that a motion is no part of the record in a cause, unless made so by being incorporated into a bill of exceptions. The defect in the record upon this point alone renders it impossible for us to grant a rehearing.
' An effort is now made to obviate our ruling as to the other two points, by amending the bill of exceptions in the circuit court, so as to conform to what is shown by an affidavit and by a certificate of the clerk of the circuit court touching his minute entries in this cause to have been the fact, namely, that the motion for new trial was not overruled at the February term, as stated in the bill of exceptions, but was continued until the April term. Whether we could, if the difficulty were out of the way which arises from the failure to incorporate the motion into the bill of exceptions, grant a rehearing of the cause, and allow the record to be now amended, may be gravely doubted. The general rule upon which we have acted is, that where an appellant assigns error upon a record, and
The first objection taken in the opinion of the court, to the manner in which the record is made up, precludes us from examining the decision on the merits, and, consequently, from granting a rehearing; but, in overruling the motion, we do not wish to be understood as sanctioning such a practice as would be introduced by amending the record and granting the motion for rehearing, under the circumstances of this case, if that difficulty were out of the way.
The motion for rehearing is accordingly overruled.