Rawlins v. Timons

80 Mo. App. 84 | Mo. Ct. App. | 1899

SMITH, P. J.

This is an action on an instrument in writing for the direct payment of money. The case was tried by the Hon. J. W. Alexander, special judge of the court, who had been elected under the authority conferred by section-3322, Revised Statutes. The defendants had judgment and the plaintiff appealed.

At the term at which the judgment was rendered the court made an order allowing the bill of exceptions to be filed within sixty days thereafter. The plaintiff’s attorney within the sixty days formulated and sent to the defendants’ attorneys, for their approval, an order for the further extension of the time for filing of the bill, to be signed by Judge Broaddus, who was the regular judge of the court. The defendants’ attorneys, on the receipt of this, made an indorsement thereon, to wit:

“Judge of the Seventh Judicial Circuit, in the State of Missouri; We have no objection to the extension to Sept. 1st if the time for filing has not elapsed.” (Signed) “Sheets & Wait;” and then sent it to Judge Broaddus who signed'the same. Within the time so extended the bill of exceptions was presented to the special judge who signed the same.

Trial practice: special judge: extension of time to file bill of exception. The question now presented for decision is, whether Judge Broaddus, or the special judge who tried the ease, should have extended the time for filing the bill of exceptions? If the latter, and not the former, should have made the order it is clear the bill was not filed in time and must be disregarded by us. It is to be observed that the statute, section 2168, Revised Statutes, provides that the attorneys may agree in writing upon the extension of the time (the agreement to be filed with the clerk, etc.), irrespective of the action of the court or judge. State v. Ryder, 120 Mo. (loc. cit.) 93. It is thus seen there was no such written agreement of the attorneys entered into and filed by the clerk as is required by the statute. The extension was sought to be accomplished by an order of the regular judge in the vacation of the court so that it must depend for its validity upon the order of the judge and not upon the agreement of the attorneys.

The statute, section 3326, Revised Statutes, invests a special judge with all the powers of the regular judge during the period he shall act. It has been held that the authority of a special judge in a case does not end with the term but Qontinues until the'case is finally disposed of, and that he has authority to sign a bill of exceptions in a case tried by him after the expiration of the term. Holliday y. Mansker, 44 Mo. App. 465; Naffzieger v. Reed, 98 Mo. 87. And this authority was • recog’nized by the plaintiff, for it appears, as already stated, that he presented his bill of exceptions to the special judg’e for his signature.

If the record before us disclosed, as it does not, that the special judge was elected not because the regular judge was, under the statute' — section 3323, ante — disqualified to try the present cause, but for a cause that did not so disqualify him, it may be that he would have been authorized to make the extension order as well as the special judge. No good reason is seen why, in such case, either may not have made the order. There seems to be no inconsistency in this. It is no more to be presumed that the special judge was elected'for a cause that did not disqualify the regular judge to try the cause than for a cause that did. There is no presumption to be indulged the one way or the other.

According to the reasoning of the two cases last cited the special judge was invested with the exclusive authority to make the order of extension. In view of the record before us, we must think the action of the regular judge in the matter was the exercise of an unwarranted authority. It follows from this that the bill of exceptions was not filed within the time authorized by the court, and can not be noticed here. The appeal has brought nothing here but the record proper in which no error appears.

The judgment will accordingly be affirmed.

All concur.