248 Mo. 270 | Mo. | 1913
December 22, 1907, one George Craig was struck and killed by one of the defendant’s trains near the town of Moselle in Franklin county, Missouri. Said Craig was unmarried and left as his lawful heirs his mother, Nannie Craig, the present ad
In view of the law, details of the unfortunate accident resulting in George Craig’s death need not be reviewed. Whether these details would reflect upon deceased or the railway becomes a matter wholly immaterial here. Suffice it to say that the mother, Nan-Me Craig, was made administratrix of the estate and in that capacity on July 30, 1908, filed her petition charging the defendant with the negligent killing of the said George Craig. This petition was returnable-to the following November term of said court, at which time the issues were duly made by answer and reply, but the cause was continued to the following March term in the year 1909. At this March term, 1909, the-plaintiff filed an amended petition. The issues were again made up by answer and reply and the cause tried at said March term. March 13, 1909, verdict was returned for the defendant. March 16th, being a. day of said March term, a motion for new trial was filed by plaintiff, and this motion was overruled on April 5, 1909, but during the said March term. On the same day plaintiff took the appeal in this case. The récord concernng further matters had better speak for itself and we quote from the plaintiff’s abstract before us thus:
“Thereafter, on the said 5th day of April, 1909, it being one of the days of the March term, 1909, of said court, the plaintiff deposited $10 as a docket fee in the Supreme Court and filed its application and affidavit in due form praying an appeal of said cause to the Supreme Court of Missouri. And on the said 5th day of April, 1909, and at the March term, 1909, of said court, the court by order duly entered of record in said cause, duly granted the plaintiff an appeal of said cause to the Supreme Court of Missouri.
“And thereafter, on the 19th day of July, 1911,*274 and at the July term, 1911, of said court, and within the time allowed by law, the plaintiff presented her bill of exceptions herein, and said bill of exceptions was thereupon signed and sealed by the judge of said court and by an order of court duly entered of record in said cause, approved, allowed and filed, and made a part of the record in said cause.
“On the 20th day of September, 1909, and within the time allowed by law, the appellant perfected her appeal herein by filing in this court certified copies of judgment and order granting appeal.”
‘ ‘ Sucb exceptions may be written and filed at tbe time or during tbe term of tbe court at wbicb it is taken, or witbin sucb time thereafter as tbe court may by an order entered of record allow, wbicb may be extended by tbe court or judge in vacation for good cause shown, or witbin tbe time tbe parties to tbe suit in wbicb sucb bill of exceptions is proposed to be filed,' or their attorneys may thereafter in writing agree upon, wbicb said agreement shall be filed by tbe clerk in said- suit and copied into tbe transcript of record when sent to tbe Supreme Court or Court of Appeals: Provided, in all cases now and hereafter pending on appeal in tbe Supreme Court and in any of tbe Courts of Appeals, tbe bill of exceptions therein may be allowed by tbe trial court, or tbe judge thereof in vacation, and filed in sucb court, or with tbe clerk thereof in vacation, at any time before tbe appellant shall be required by tbe rules of sucb appellate courts respectively to serve bis abstract of tbe record, and for tbe purpose of determining whether sucb bill of exceptions shall have been filed witbin sucb time such appellate court shall make reference to its docket: Provided, that if for any reason tbe bill of exceptions cannot be allowed and filed witbin tbe time above provided, then tbe judge before whom sucb case was tried shall certify in writing sucb fact to tbe appellate court in wbicb tbe appeal is pending, and sucb appellate court shall reset or continue sucb case for a sufficient time witbin which to enable sucb bill of exceptions to be allowed and filed, and in that event tbe time witbin wbicb sucb bill of exceptions may be allowed and. filed shall be determined by tbe time witbin wbicb appellant’s abstract must be served after*277 such resetting or continuance. Hereafter no case now ■or hereafter pending in any appellate court shall he affirmed for failure to file a bill of exceptions within the time allowed by the trial court, but such case may be affirmed for failure to file a bill of exceptions within the time in this section provided, if error do not appear in the record of the case. All exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions.”
The defendant contends that this Act of 1911 does not apply to the case in hand. It further contends that if it should be construed to so apply, then it would be violative of constitutional provisions. We have therefore learned discussions upon the constitutionality of the act from different angles, or viewpoints. The question of the new statute being one of procedure and not one affecting substantial rights is likewise thoroughly and ably discussed, but to our mind all these questions may be more properly left to a ease where they become real and live issues. We do not believe that the statute was ever intended to apply to a case having the facts of the one before us. The record before us discloses that the plaintiff’s right to file a bill of exceptions had expired long before the Act of 1911 was ever contemplated. With her the right, under the law, was a dead issue. In our judgment the intent of the Act of 1911 was to protect parties having live and existing rights at the date of its enactment. Under the old law appeals were taken, and for sundry reasons bills of exceptions could not be filed in time. Extensions of time had to be procured, and these sundry extensions had to be made whilst the right to file a bill of exceptions yet existed. These matters were a tax upon busy lawyers, and the evident purpose of the act was to relieve them of the necessity of procuring further extensions of time to file their bills of exceptions in cases where they had a live and existing right to file them at the time the
This Act of 1911 is composed of three separate parts, viz., (1) the re-enactment of old section 2029, Revised Statutes 1909; (2) a proviso which we will call proviso No. 1, and (3) a proviso which we will call proviso No. 2. If proviso No. 1 is considered alone it lends much aid to the contention made by the plaintiff, but we must consider proviso No. 2, as well as the original section which was re-enacted, and when the whole new section is thus considered we think it should be construed to apply only to cases where there was an existing right to file a bill of exceptions at the date the act took effect.
But there is in proviso No. 2 a condition which precludes the bill of exceptions in this case from being considered, irrespective of the general construe
' “Hereafter no case now or hereafter pending in any appellate court shall be affirmed for failure to file a bill of exceptions within. the time allowed by the trial court, but such case may be affirmed for failure to file a bill of exceptions within the time in this section provided, if error do not appear in the record of the case. All exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions.”
Note the language. It refers to a “failure to file a bill of exceptions within the time allowed by the trial court.” The abstract before us shows no time given for the filing of a bill of exceptions by the trial court, and the proviso says nothing about a failure to file a bill of exceptions during the trial' term. So that the class of cases covered by proviso No. 2, is that of a failure to file a bill of exceptions during the time granted by the trial court. This case does not fall within the class. "We are referred to the recent case of O’Dowd v. Wabash Railroad, 166 Mo. App. 660, by the Kansas City Court of Appeals. It may be that language used in that case lends some support to the contention of plaintiff and if it does, it should be overruled. But what is there said should be read in the light of the facts of that case. The opinion (p. 664) thus states the facts:
“The plaintiff has moved to strike defendant’s bill of exceptions from the record, because it was not allowed, signed and filed in the time fixed by the court. At the January term of the court for 1911,- and on the 28th day of March, appeal was allowed and defendant given until the 9th day of the following September to file its bill of exceptions. For good cause shown, defendant was allowed other extensions of time to file its bill of exceptions, the last extension being until the 15th day of January, 1912. The bill was signed, sealed, filed and made a part of the record*280 on the 24th day of February, 1912, more than one month after the time allowed for that purpose.”
It will be noticed that there was an existing right to file a bill of exceptions at the time the Act of 1911 took effect. The right to file a bill of exceptions in that case ran to September 9, 1911, long after the act under review went into effect, and the ruling of the Kansas City Court of Appeals in result was right.
III. With this construction of the Act of 1911, as we have indicated in our paragraph two, we can have before us here but the record proper in this case. The judgment is sustained by the pleadings and in such ease must be affirmed. Let the judgment be affirmed.