State ex rel. Jordan v. McGinnis , 1889 Mo. App. LEXIS 46 ( 1889 )

Ellison, J.

Defendant files Ms motion to dismiss the appeal herein, or, more properly, to strikeout the bill of exceptions on the ground that it was not filed within the time for which leave was given. The appeal was granted to plaintiff on June 18, on which day plaintiff took leave to file a bill of exceptions on or before August 1. He failed to comply with such leave and did not file the bill till August 20, and, as the court was continued, by adjournments till August 28, it having adjourned a few days after the appeal was taken to July 15, on which day it was formally opened and adjourned to August 25, and then to August 28, he now contends that since he filed his bill during the term, though after the limit allowed, the filing was legal, under the authority of Pershing v. Canfield, 70 Mo. 140; Weil v. Jones, 70 Mo. 560. This contention would be true if the bill had been filed in court during the session of the court.. By not filing the bill within the time limited by the leave taken, the,, case remains as though he had not taken a formal leave. The question then iff, can a bill of exceptions be filed with the clerk, on a day when the court is not in session, although it may be during the continuance of the term \ We think it cannot. We know of no authority in the clerk, outside session of court, to file any matter except such as he is authorized by some statute or by an order -of court. In this case the clerk made the following entry on the record: “Afterwards, in vacation, on the twentieth day of August, 1888, comes plaintiff, by attorney, and files in the office of the circuit clerk, in and for the county of Vernon, and state of Missouri, his bill of exceptions,” etc. If the court had beeifproperly in vacation, there would have been no authority in the clerk to make this entry, from the fact that the time limited had expired, in which plaintiff or the clerk was authorized to file the bill. Plaintiff, .however, seeks to avoid the failure to comply with the leave taken on the ground' of the absence of Hon. D. P. Stratton, the trial judge, thereby, as is alleged, preventing his having the exceptions signed. We have examined the affidavits presented by the parties in this connection, and have concluded to rule the point against the plaintiff.

We shall, therefore, strike out the bill of exceptions ; and discovering no error in the record proper, justifying a reversal, we affirm the judgment.

All concur.