Bloch Queensware Co. v. Smith, Saxton & Co.

107 Mo. App. 13 | Mo. Ct. App. | 1904

ELLISON, J.

This action is on an account. There was judgment for the plaintiff. Defendant thereupon, in due time, asked for a new trial and his motion to that effect was sustained and plaintiff appealed. We are not prepared to say that there was any abuse of the trial court’s discretion in granting the new trial. Where a new trial is granted justice may yet be done between the parties and an appellate court will look to the matter with less scrutiny than if it had been refused. Helm v. Bassett, 9 Mo. 52; Longdon v. Kelly, 51 Mo. App. 572; Ensor v. Smith, 57 Mo. App. 584; Powell v. Railway, 59 Mo. App. 335.

But however that may be, we find that plaintiff was not at liberty to complain since it failed to file its bill of exceptions in the extended time allowed by the judge in vacation. The time was “extended to the October term of the Adair county circuit court, A. D. 1903.” The bill was not filed until the second day of that term. That was too late. “To the October term” meant to the first of the term, that is, up to and including the first day. In some of the cities of the State a term of court, especially the spring term, extends continuously over a period of six months. To say that when time to file a bill of exceptions is extended “to” such a term, meant that the whole period of the term might be taken is unreasonable. The word “to” has no one specific meaning in a legal sense, though it is generally a word of exclusion (Anderson’s Law Diet). Its meaning is ascertained from reason and the sense in which, it is used. Thus, if a boundary of land extends to a field, the field itself will not be included in the boundary. Montgomery v. Reed, 69 Maine 510. On the other hand, in State v. Flutcher, 166 Mo. 582, the time for filing a bill was “ extended up to the twenty-eighth day of June, 1901;” and the Supreme Court,, putting a reasonable, construction on those words, held that they meant to include the twenty-eighth day. And so, where the extension was “until” a certain day, such day is included in the time. St. Louis Ry. Co. v. Gracy, 126 Mo. 472. But, generally, if the time named as limiting the extension is designated by a word which includes an extended and indefinite number of days (as in this case to a certain term of court) then the word “to” should limit the time to the first day of such period. If the present order had been intended to include the whole term, the wqrd “during” would unquestionably have been used. That word would have been an apt expression of such intention. Harwood v. Toms, 130 Mo. 242.

The case being without a bill of exceptions and finding no error in the record proper, we affirm the judgment.

All concur.