Martin v. Mercantile Town Mutual Fire Insurance, 124 Mo. App. 221

Martin v. Mercantile Town Mutual Fire Insurance

124 Mo. App. 221 | Mo. Ct. App. | 1907

GOODE, J.

This cause was tried at the November term, 1905, of the circuit court of Texas county. Hon. Leigh B. Woodside, the regular judge of the court, was unable to hold part of the term and failed to procure another judge to hold it; wherefore the attorneys of the court, on November 16, elected one of the members of the bar, W. E. Barton, to hold the remainder of the term. The present cause was tried November 28 and resulted in a verdict for plaintiff. Defendant appealed and was allowed one hundred and twenty days from said date to file a bill of exceptions. The court after-wards adjourned to court in course and the record was signed by Hon. W. E. Barton, the special judge for the term. On February 10, 1906, an order extending the time to file the bill of exceptions until August 1 was filed with the clerk, said order being signed by both the regular judge, L. B. Woodside and the special judge, Hon. W. E. Barton. On July 23,1906, an order was filed with the clerk dated July 21, extending the time to file *223the bill of exceptions to September 1, 1906. TNs order was signed only by tbe regular judge, Hon. L. B. Wood-side. On August 1, 1906, the bill of exceptions in tbe cause was filed, it having been signed and allowed only by Hon. W. E. Barton, tbe special judge. With tbe record in this State, the exceptions taken are unreviewable. Whether tbe regular or special judge bad authority to extend tbe time for filing tbe bill of exceptions and sign and allow said bill, tbe appeal must fail except as to the record proper. One of tbe extensions was allowed only by tbe regular judge, hence if tbe power was in the special judge, that extension was invalid. On tbe contrary, if tbe power was in tbe regular judge, tbe bill of exceptions not having been signed by.him, is invalid. In Rawlins v. Timons, 80 Mo. App. 84, tbe authority to deal with tbe bill of exceptions was held to be in the special judge elected by tbe members of tbe bar. Section 731 of tbe Revised Statutes of 1899 says if tbe judge who tries a case goes out of office before signing the bill of exceptions, it shall be signed by the succeeding or acting judge of tbe court. In State v. Sanders, 106 Mo. 189, it was held that a judge elected to bold a term is a judge of tbe court, and it may be argued that tbe special judge who tried this case went out of office with tbe expiration of tbe term. We need not pass on these points as tbe appellant invoked authority alternately from tbe special and tbe regular judge.

The judgment is affirmed.

All concur.