248 Mo. 715 | Mo. | 1913
ON MOTION TO DISMISS APPEAL.
Motion to dismiss appeal for failure to perfect same within one year from the date of the granting thereof having been filed on proper and timely notice thereof given by the State, the question is before us.
The appeal herein was granted by the circuit court of the city of St. Louis on the 30th day of September,
Section 5313, Revised Statutes 1909, provides that, except in capital cases, a failure to perfect an appeal in a felony case within twelve months from the date of the granting of the same shall be grounds for the dismissal of such appeal, unless good cause for the delay shall be shown. No good cause to take the case out of the operation of the statute has been shown, if in fact there has been a failure to perfect the appeal. Whether there has been a failure so to perfect the appeal turns on the question of whether the payment or tender of the docket fee of ten dollars is a condition precedent to the perfecting of an appeal in a criminal case. Is an'appeal in a criminal case (where no order has been made permitting appellant to prosecute an appeal as a poor person) perfected when the clerk of the court nisi certifies and forwards to the clerk of this court a transcript of the record and proceedings, whether the “docket fee” be paid or not?
By statute the duty enjoined upon the circuit clerk differs according to whether the appeal be a capital felony or an ordinary felony. In a capital case the clerk is required of his own motion “without delay” to make out and forward a full transcript of the record to the clerk of this court. [Sec. 5308, R. S. 1909.]
Being thus' relegated to the statute governing appeals in civil cases for the rule of procedure, in perfecting appeals in a criminal case (of the kind at bar) and turning to that statute, we find it required by section 2047, Revised Statutes 1909, that “the appellant shall perfect his appeal in the manner and within the time prescribed in the next succeeding section.” Section 2048, to which special reference is made’by the language above quoted, provides that “the appellant or plaintiff in error shall cause to be filed in the office of the proper appellate court, ... a perfect transcript of the record and proceedings in the cause, or in lieu of such transcript, a certified copy of the record entry of the judgment,” etc. We quote these statutes as showing that in an appeal in an ordinary felony case the appellant in order to reach this court, after leaving the court nisi, must walk in the foot-prints of a civil appellant, though he is allowed to travel more slowly. [Secv 5313, supra.] Upon the appellant in the case at bar, as upon a civil appellant, the statute placed the duty of “causing to be filed in the office of the proper appellate court a perfect transcript.” This duty of initiative is not placed on the clerk of the lower court, but it is saddled by statute upon the appellant, except in appeals in convictions for capital offenses, when such latter clerk acts of his own volition, by statutory mandate. In other words, while the clerk is required to act, in acting he does so upon the request and at the direction of the appellant. Nor does section
We need not here discuss the technical meaning of-the word “file;” because that meaning is legion; as the facts differ, so also does the meaning differ. That ordinarily “a paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file” (Bouvier’s Law Diet.), we do not doubt. That an “actual delivery of the paper to the clerk without regard to any action that he may take thereon,” may also be a filing, we do not question. [Grubbs v. Cones, 57 Mo. 83; State v. Hockaday, 98 Mo. l. c. 593.] If the party offering to file a paper or legal document, has, as a condition precedent, done his full duty and performed all the legal obligations incumbent on him, he ought not of course to suffer from the mere arbitrary act of the clerk or other officer who. may refuse to perform a duty on his part. Nor does the law require such party to suffer, or hold him in default. 'But while anything remains to be done as a condition precedent, by him who, offering to file, actually delivers to the officer the custody of the document, the document cannot be said to be filed, though it be lodged with the officer, unless the officer receive it to be filed and waive- (if the waiver be within the officer’s power) the condition precedent. The placing of a file mark on a paper, with teste of the clerk thereof, is, we concede, not a filing, but merely evidence that the paper has been filed. So much on this point is said because the transcript in the instant case has been lodged with the clerk of this court, but our clerk has refused, for lack of payment in advance of the
“Clerks of the Supreme Court and Courts of Appeals, in lieu of other fees, shall severally be allowed and paid by the appellant or plaintiff in error a fee of ten dollars, which shall include all the costs in the case, including a certified copy of the opinion and mandate to the court from which said cause shall be sent, and all fee bills and executions issued in said cause: Provided, that nothing herein shall be construed to apply to any one who was permitted, as provided by law, to sue as a poor person. If the judgment of the Supreme Court or Courts of Appeals is in favor of the appellant or plaintiff in error, the clerk shall tax the fee provided herein in favor of said appellant or plaintiff in error, and it shall be their duty to issue fee bills or writs of execution in all cases in favor of the successful party, after the adjournment of each term of the court, including therein all the costs that have accrued in the Supreme Court or Courts of Appeals, and receiving for said writs or fee bills the fee now provided by law.”
That this section contemplates the payment in advance of the costs which shall accrue here as liquidated by the enactment at the sum of ten dollars, there can be but little question. We have in mind, of course, the statutory exception in the section written as to those suing in forma pauperis.
There is no express statutory authority in this State for prosecuting an appeal in a criminal case in forma pauperis. In the courts nisi it is but stating a ridiculous truism to say that one being prosecuted for a felony, has no occasion to invoke the privilege. By the vaguest statutory inference alone can it be said that this court has ■ the right, even In a proper case properly presented, to permit the prosecution of an
The duty of paying this liquidated sum of ten dollars, is, we think,.from what has been paid, just as imperatively enjoined upon an appellant in a criminal case as it is upon ah appellant in a civil case. Such appellant has not perfected his appeal until he has produced it in the appellate court so that it may be heard. He cannot so produce it, clearly, till he has filed it. And the clerk is not required to file it till the appellant has complied with the condition precedent noted, viz., the payment (or tender in case of arbitrary refusal)
The same conclusion must be reached for another reason, technical, it is true, but logical and cogent: To be perfected within the purview of section 5313 supra, the transcript must be filed. The indorsement of the filing by our clerk is the proof of, the fact that it was filed, and thus the last step having been taken that the appeal has been perfected. Absent such file-marks, there is no evidence before us of filing, and of perfecting the appeal, and thus by a different road we reach the same conclusion. If the absence of this evidence of filing in fact, is not due to appellant’s dereliction, but chargeable to any arbitrary refusal of the clerk to act, appellant being rectus in curia (of which there is before us in the case at bar no charge or even hint), then a timely showing of these things would obviate dismissal, and timely action to compel the clerk to perform his duty, would correct,the default.
• We conclude that the motion to dismiss the appeal is well taken, and the appeal ought to be dismissed. It' is so ordered.
