31 Mo. 499 | Mo. | 1862
delivered the opinion of the court.
This was a suit brought on the 15th day of September, 1857. Judgment was rendered for the plaintiff on 1st day of December, 1860. Appeal was allowed on the 28th day of January, 1861; but the bill of exceptions was not filed till the 18th day of March, 1861. At March term, 1862, appellant having failed to file a transcript of the record, respondent produces a transcript and moves for an affirmance of the judgment. Appellant also produces a transcript, and asks leave to file it for the cause set out in affidavits, also filed. The affiant George D. Appleton says, that he has been president of the defendant since the 25th of January last; that S. R. Clarke had been president for about eleven months before
The appellees having produced in court a transcript of the record, the law requires that the judgment should be affirmed “unless good cause to the contrary be shown; we must only consider, therefore, whether good cause has been shown by the affidavits. No precise rule can be laid down as to what does constitute good cause to excuse an appellant for not complying with the statute. Each case depends upon its own merits, and must be left, as the statute leaves the whole subject, to the discretion of the court. In this case thirteen months and a half have passed since the appeal was allowed and twelve months since the bill of exceptions was signed, and were the transcript filed now the case could not properly be docketed at this term, so that the fourth term after the appeal would be reached before a hearing could be had. Eor this delay, the only excuse offered by Mr. Appleton’s affidavit is that the former president of the company entirely neglected the duty with which he was charged. Being an officer of the company, charged with a specific duty, he was for that purpose the company, and his negligence is the appellant’s own negligence, and therefore unexcused.
The matters stated in Mr. Krum’s affidavit, considered in connection with the disturbed and distracting condition of public affairs, are entitled to consideration, and do excuse some want of diligence, but not to the extent to which it has gone in this case. A whole year is too long for an appellant to forget 1ns case. Good cause for the failure to file the transcript of the record has not been shown.
leave is given the respondent to file a transcript, and the judgment is affirmed. The motion for damages is overruled.