131 Mo. App. 1 | Mo. Ct. App. | 1908
The first question relates to an extension of time for filing the bill of exceptions. On the fifth day of September, 1905, and during the term, the court granted plaintiff ninety days from that date in which to file a bill of exceptions. The time thus granted would expire on the 4th day of December, 1905. During that time, and before its expiration, to-wit, on November 20th, counsel representing either party, entered into a stipulation, providing that plaintiff should have additional time for the filing of his bill of exceptions, which additional time should expire February 1st, 1906. Although this stipulation was executed as of date, November 20, 1905, plaintiff’s counsel neglected to file it with the clerk, until December 18,1905; that is to say, although executed within the time granted by order of the court for filing the bill of exceptions, it was not filed until after that time had expired. Eespondent makes the point here that the bill of exceptions filed in
Now in this- case the court had first extended the time to December 4th, by an order of record, and it was therefore entirely competent for the parties to further extend the same by agreement, as contemplated by the statute supra. As to the proposition that an order of the court in term time, or the judge in vacation must be entered upon such stipulation, or as suggested by counsel, that the stipulation must ripen into such an order, the question has been determined by the judgment of our court of last resort adversely to the argument advanced by respondent. In State v. Hilterbrand, 116 Mo. 443, 22 S. W. 805, it will be observed, by reference to the Attorney-General’s brief, that the identical argument was urged upon the Supreme Court. The time had been further extended by stipulation for filing the bill of exceptions in that case and no order of the court
Notwithstanding the argument of the Attorney-General mentioned, in the opinion given, the court said such was an erroneous view of the statute; that it was entirely competent for the parties litigant, during the time theretofore extended by the court, to further extend the time for filing the bill by stipulation to that effect. The import of the ruling manifestly is that no order of the court in term, nor of the judge in vacation, is essential on such stipulation when validly entered into between parties before the expiration of the time theretofore granted for filing the bill. And so too, it appears by reference to the Attorney-General’s brief in connection with the opinion of the court in State v. Wyatt, 124 Mo. 537, that the identical question was urged upon the Supreme Court a second time and repudiated curtly, and without elaboration.
As to the proposition that the stipulation must not only be entered into prior to the expiration of the time theretofore extended, for the filing of the bill, but that it must be filed with the clerk as well within that time, it is sufficient to say that the question with respect to the date of its filing has been ruled adversely to respondent’s argument in Monarch Rubber Co. v. Bunn, 78 Mo. App. 55. The statute involved was construed in that case. It was said that while the statute requires the agreement to be made before the time granted had expired, it does not require that it shall be filed within that time. We also have carefully considered the statute with respect to this matter and feel that the judgment given by the Kansas City Court of Appeals in the case last cited is entirely sound. Indeed, there is nothing appearing in section 728, Revised Statutes 1899, referred to, which requires such stipulation to be filed prior to the expiration of the time mentioned. Indeed, in many instances such stipulations are not entered into until
Authorities are cited by respondent and arguments submitted in support of the proposition that it must be exemplified to this court by the record proper, or the abstract thereof when the case is here on short form, aliunde bill of exceptions, to the effect that the several extensions for filing the bill were granted each before the last preceding extension had expired. And indeed such is the well settled law. The argument advanced from this premise is that there must be an order of the court based on the stipulation mentioned, otherwise there could be no order or abstract thereof shown aliuncle the bill of exceptions as to such extension of time. We are persuaded the learned counsel has overlooked the express provisions of the statute, section 728 supra, with respect to the stipulation being considered. Now while it is true that stipulations, like motions, are usually preserved in the bill of exceptions, which ordinarily is the proper repository therefor, it seems the statute, section 728, which authorizes the stipulation now under consideration, contemplates that it shall be treated by the clerk and appellate court as parts of the record in the cause, for it makes no provision as to its exemplification on appeal in the bill of exceptions; while on the other hand, it expressly provides that it “shall be filed by the clerk in such suit and copied into the transcript of record when sent to the supreme court or courts of appeals.” Learned counsel for appellant in this case has set the stipulation out in full as parcel of his abstract, treating it as the statute contemplates, as a proper paper to be incorporated into the trans
It is insisted upon the part of plaintiff, that the proof showed beyond controversy, the debt described in and secured by the deed of trust, had been paid prior to the advertisement of the property and the court therefore erred in refusing to decree the injunction perpetual. A proper solution of the question thus presented, involves an examination of the facts in proof Avhich will be stated in extenso. On the 13th day of January, 1896, the plaintiff Reynolds and one Hempstead were tenants in common of a certain lot of ground in the City of Cape Girardeau. Plaintiff Reynolds owned a three-fourths interest in this lot, and Hempstead a one-fourth interest therein. On that day Benjamin R. Hempstead
The $3,000 note is signed by Benjamin R. Hemp-stead and Bettie D. Hempstead. Nothing appears on its face indicating whether one or tiie other of these signers were principals or sureties. From the fact that nothing appears to the contrary, it imports a joint obligation in which both Hempstead and his wife are principals. For the converse of the proposition see Reissaus v. Whites, 128 Mo. App. 135, 106 S. W. 603. In this view of the case, the payment of the balance due on July 6, 1904, by Mrs. Hempstead, no doubt operated an extinguishment of . the debt secured in the original deed of trust, and -thereby terminated the power given in the deed, to sell for default in its payment. If such appeared to be the whole case, it would be entirely proper to give judgment here, remanding the cause with directions to enjoin the sale. The mere fact that the note on its face imports a joint undertaking in Avhich both of the Hempsteads are principal parties is not conclusive upon them, however, if either one be a surety for the other; that is to say, if in truth one was the principal debtor and the other the surety. While it is usually the province of the court to declare the legal effect of a written instrument in evidence, and it is likewise true that the general policy of the law forbids the reception of oral testimony to vary or alter the terms of a writing, these rules do not preclude the introduction of parol to explain the relationship of parties to an undertaking for the purpose of determining the equities which should obtain between those whose
Now it appears from the record the defendant sought to prove that the |3,000 debt secured by the deed of trust Avas the debt of the husband, Benjamin R. Hempstead, that his Avife Bettie D. Hempstead was surety therefor only, and that she paid the same as his surety and took an assignment thereof. On objection of plaintiff, the court rejected this evidence. This proof should have been received. On the question thus sought to be elucidated depends the proper solution of the controversy; for if Mrs. Hempstead paid, the note as surety for her husband, the security held by the creditor Tay
Now this is a proceeding in equity. The court had jurisdiction to administer complete relief and if no more appeared than that Mrs. Hempstead paid the debt as surety for her husband, the court could have ordered the pleadings amended and administered such relief looking to the protection of her rights as was compat