Roush v. Cunningham

| Mo. | May 21, 1901

GANTT, J.

A suit in equity was commenced by plaintiff in the Linn Circuit Court on May 2, 1895, whereby plaintiff sought to have a decree of specific performance of an alleged contract by Jacob Cunningham with the mother of plaintiff to adopt plaintiff as his child and leave her his property at his death, rendered in her favor.

The answer of the defendants, the heirs at law of said Cunningham, denied all the allegations of the bill.

On a trial in the circuit court the finding and judgment was for the defendants, and plaintiff appeals.

I. It is insisted by the defendants that the bill of exceptions incorporated in the transcript sent to this court is no part of the record because the same was not filed in the circuit court at the June term, 1898.

The abstracts and briefs were due at the October term, 1900, of this court, for the January call, 1901.

The plaintiff and appellant served defendant’s counsel with her abstract on the third day of December, 1900, and filed the same in this court December 8, 1900.

On December 18; 1900, the defendants challenged the correctness of plaintiff’s abstract by written objections filed in this court.

They specified that the recital in the abstract that “plaintiff within the time given by the court at the June term, 1898, duly filed her bill of exceptions in said cause” was untrue, and asked for a rule on the circuit clerk for a certified copy of all that part of the record of the circuit court pertaining to the extension of time granted plaintiff to file her bill of exceptions and all that part of the record pertaining to or in any way showing whether said bill of exceptions was ever filed or not, and when the same was filed. The rule was issued as prayed and in his return the clerk returns and certifies that the circuit court of Linn county “convened at a regular term of court on Monday, June 6, 1898, and continued in regular session until the fifteenth day of June, 1898, and that during said session of said term the bill of exceptions ‘was not filed of record’ in said court. Nor was any record entry showing the filing of said bill of exceptions made in said court during said June term of said court or on any other day.”

In a supplemental certificate, procured and filed by plaintiff, he further certifies that on the tenth day of June, 1898, the plaintiff’s attorney handed him a bill of exceptions in said cause which had been signed by Judge Eucker, the judge of said court and requested him to file the same; that thereupon he filed the same and stamped thereon the words, “Filed at Linneus, June 10, 1898,” and signed his name,'“Joe A. Neal, Olerk.”

And the said bill of exceptions has since remained with the files of said cause in his office. Upon these facts the question arises, can the said bill of exceptions be considered as a part of the record ?

The leave extending the time for filing the bill of exceptions was “until and during the June term of 1898,” of said court.

Following an unbroken line of decisions by this court, the answer must be that as the fact is conclusively shown by both parties that the June term, 1898, of the circuit court of Linn county was in session on June 10, 1898, the day on which the bill purports to have been filed by the clerk and no 'entry of record was made showing or allowing such filing, it constituted no part of the record and hence can not be considered.

This has been too often said to be questioned now.

In Ricketts v. Hart, 150 Mo. 64" court="Mo." date_filed="1899-05-30" href="https://app.midpage.ai/document/ricketts-v-hart-8013209?utm_source=webapp" opinion_id="8013209">150 Mo. 64, this Court in Banc said: “The record proper must show the filing of the bill of exceptions, if the filing is done in term time.” In Lafollette v. Thompson, 83 Mo. 199, this court said: “There must be an entry of record to make a bill of exceptions a part of the record in term time “ etc. The same ruling was made in Carter v. Prior, 78 Mo. 222" court="Mo." date_filed="1883-04-15" href="https://app.midpage.ai/document/carter-v-prior-8007422?utm_source=webapp" opinion_id="8007422">78 Mo. 222; Pope v. Thompson, 66 Mo. 661; Dinwiddie v. Jacobs, 82 Mo. 195" court="Mo." date_filed="1884-04-15" href="https://app.midpage.ai/document/dinwiddie-v-jacobs-8007915?utm_source=webapp" opinion_id="8007915">82 Mo. 195, and numerous other cases.

Nor did the Act of 1885 and subsequent acts affect those rulings.

There remains, then, nothing but the record proper, and it is not asserted by the appellant that there is any error therein.

The judgment of the circuit court must be and is accordingly affirmed.

Sherwood, P. Jand Burgess, J., concur.