Cranor v. School District No. 2

18 Mo. App. 397 | Mo. Ct. App. | 1885

Opinion by

Philips, P. J.

The appellant (defendant below) seeks a reversal of the judgment of the circuit court on the ground of alleged error in excluding certain evidence offered by defendant on the trial of this case. As this alleged error occurred in the progress of the trial, the only way the matter can be brought to the attention of this court for review is by a bill of exceptions, in which such occurrences must be preserved.

The record' shows that this case was tried at the September term, 1881, of the court} before the Hon. John H. Shahklin, as special judge. The motion for new trial was filed' by defendant, and was overruled by the court, at said September term. A motion in arrest of judgment was also filed by defendant at that term; but this motion was not passed upon until the succeeding term of court, in March, 1882, when it was overruled; ' Thereafter the bill of exceptions was presented and signed. But the record shows that it was signed by John O. Howell, judge of the Gentry county circuit court.

The bill of exceptions could only be signed by the judge who tried the case, and he was John H. Shanklin. How could Judge Howell certify that certain evidence was offered and excluded at the trial, when he was constructively absent? The statute contemplates that the matter of exceptions comes under the personal observation of the trial judge, and that the error is called to his attention at the time, and the exception then and there taken. Judge Scott, in Consaul v. Liddell (7 Mo. 250-258), aptly stated the test as to what judge should sign the bill of exceptions, in his supplemental concurring opinion, thus: “As the judge below signed the bill of exceptions under such circumstances as would have prevented this court from compelling him to do so by mandamus, I concur,” etc.

I am also of opinion that the bill of exceptions should have been signed at the same term the motion for new trial was overruled. The language of the statute is explicit enough to indicate that this was intended by the legislature. But the supreme court, by judicial construction, extended its operation so as to permit parties, by consent, with the concurrence of the court, to file such bills in vacation. Then the court went further and held that where the motion for new trial was filed timely at the term the case was tried, but went over to the succeeding term for final disposition, the bill of exceptions might be filed at that term, after the motion was overruled. But the supreme court have never held that a motion in arrest of judgment, which goes to the record alone, and not errors arising in the progress of the trial, would have the effect to carry over to a succeeding term, where the motion for new trial had been disposed of at the trial term, the right to make out the bill of exceptions as to matters occurring in pais. We think the statute has been extended quite far enough, and we are unwilling to go yet a step further in what we conceive to be a mischievous direction.

As we discover no errors in the record proper, the judgment of the circuit court must be affirmed.

All concur.