278 S.W. 1045 | Mo. Ct. App. | 1925
The issues involved in this case are confined particularly to the construction of section 1460, Revised Statutes 1919, which prescribes the time within which bills of exceptions may be filed. It is the contention of respondent that the proviso in the above-mentioned section has no application to writs of error, and makes no provision for the filing of a bill of exceptions in a case pending in an appellate court on a writ of error, but that its provisions are confined solely to cases "pending on appeal." Section 1460, Revised Statutes 1919, so far as it affects this case, reads as follows:
"Sec. 1460. Exceptions to be filed, when — continuance. Such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as the court may by an order entered of record allow, which may be extended by the court or judge in vacation for good cause shown, or within the time the parties to the suit in which such bill of exceptions is proposed to be filed, or their attorneys, may thereafter in writing agree upon, which said agreement shall be filed by the clerk in said suit and copied into the transcript of record when sent to the supreme court or court of appeals: Provided, in all cases now and hereafter pending on appeal in the Supreme Court and in any of the Courts of Appeals, the bills of exceptions therein may be allowed by the trial court, or the judge thereof in vacation, and filed in such court, or *467 with the clerk thereof in vacation, at any time before the appellant shall be required by the rules of such appellate courts respectively to serve his abstract of the record, and for the purpose of determining whether such bill of exceptions shall have been filed within such time such appellate court shall make reference to its docket:" etc.
It is relator's contention that this provision extends to cases wherein writs of error have been sued out.
A writ of error, of course, is different from an appeal, and may be sued out any time within one year after judgment is rendered, and can be sued out only upon final judgments, whereas appeals may not only be taken from final judgments, but from special orders after final judgment and other special orders. Learned counsel for relators argue that, in order to arrive at the legislative intent, we must take into consideration the fact that appeals and writs of error are separately treated in all of the statutes passed prior to the amendment of 1911, and that the mention of one nowhere includes the other, and, therefore, this fact conclusively shows that the Legislature did not intend the words, "pending on appeal," to include writs of error. Since the passage of the Act of 1911, the question of the proper time for filing a bill of exceptions was before our Supreme Court in a writ of error case — State ex inf. v. Sweaney,
It follows, therefore, that relators are entitled to the relief prayed for in their petition, and their motion for judgment on the pleadings is well taken. It is ordered that our peremptory writ of mandamus issue, compelling respondent, as circuit judge, to sign and allow the bill of exceptions as prayed for by relators. Daues, P.J., and Becker, J., concur.