Loewen v. Hicks , 63 Mo. App. 79 ( 1895 )

Smith, P. J.

This case is the sequel to that of Hicks v. Hoos, reported in 44 Mo. App. 571. The ease there was that Hoos, being the owner of certain vacant lots and desiring to erect houses thereon, borrowed of Hicks the sum of $6,000, for that purpose, executing his promissory notes for that sum and deeds of trust on the lots to secure the same. He, with the Loewens as sureties (who are plaintiffs in the present suit) executed a bond to Hicks in the sum of $5,000, conditioned that said obligation was to be void, if the sum of money specified in the said notes and' deeds of trust hereinbefore referred to should be used in the erection of four dwelling houses on said vacant lots. There was a breach of the condition of the bond and judgment against the principal and sureties in the bond, for $1,000, in the lower court, which was subsequently affirmed here.

It appears from the petition in this case that since the "affirmance of the judgment in Hicks v. Hoos, the aggregate of all of said notes executed by Hoos to Hicks has been paid to said Hicks, with all interest thereon, so that he has received the full amount of his loan and no longer has any interest in the premises, and that no part of said judgment is necessary to indemnify or protect the said Hicks. The prayer of the petition is that the said judgment be declared satisfied and discharged, etc. The decree of the court was in conformity to the'prayer • of the plaintiff’s petition.

The record discloses the following' entries with respect to the-allowing of the appeal and: the giving defendants time in which to file the bill of exceptions: “Final judgment was rendered on October 10, 1893, at the October term. The motion for a new trial was filed October 13, 1893, at the October term* and overruled on December 12, 1893. On December-16, 1893, at the October term, this entry was made:

“■ ‘Now come defendants by attorney, and file herein affidavit for an appeal, which said appeal is by the court allowed as prayed, to the Kansas City court of appeals, and defendants are given until on or before February 1, 1894, in which to file bill of exceptions.’ ”

On February 24, 1894, at the January term, this entry appears: “Come now defendants by their attorney and upon their application, the time for filing bill of exceptions herein is extended fifteen days.” On March 3,1894, at the January term, this entry appears: “Now come parties- herein by attorney, and file stipulation that defendants herein have until March 15, 1894, in which to file bill of exceptions.” This stipulation is dated February 28, 1894. March 14, 1894. In vacation. Bill of exceptions filed.

Under the provisions of section 2168, Revised Statutes, a bill of 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.”

It thus appears that on the sixteenth day of December, 1893, the trial court granted the defendants “until on or before February 1, 1894,” in which to file a bill of exceptions; but the bill was not filed within that time. This being the case, it was clearly out of the power of the court, on the twenty-fourth day of February, to make an order extending the time for filing the bill of exceptions, for fifteen days, or for any other period.

And equally inefficacious was the stipulation of both parties entered into on the twenty-eighth day of February to extend the time until March fifteenth following. The defendants did not avail themselves of the extension and file their bill of exceptions on or before February 1, 1894; nor did they, during the currency of such period of extension, obtain from the court, or the judge thereof, an extension of the time; nor did the attorneys on both sides enter into a written stipulation extending the time. When the first day of February — the time given by the order of the court until which to file their bill — had passed, the decree of the court became final. After the expiry of that time, neither the court nor the judge thereof, nor the parties, had any power to take any further steps in the cause. The word “extended,” as employed in the statute, means “prolonged,” and, of course, as said by Sherwood, J., in State v. Scott, 113 Mo. 560, “a prolongation of time can not occur after the time originally limited has expired.” State v. Apperson, 115 Mo. 470; State v. Butt, 117 Mo. 584.

It necessarily follows that both the so-called extension by the court and that by the stipulation of the parties was without authority of- law, and, therefore, there is no bill of exceptions preserved. Unless there is error apparent upon the face of the record proper, we must affirm the decree of the trial court.

The payment to Hicks of the entire amount due on the notes secured by the deed of trust had, in equity, the effect to discharge the judgment recovered on the bond. A payment of the judgment would have, fro tanto, discharged the trust debt. Ham v. Hill, 29 Mo. 275; Hicks v. Hoos, 44 Mo. App. 571. Since the petition sufficiently alleges the payment of the notes, it inevitably results that the same is sufficient to justify the decree.

Discerning no error in the record proper, the decree is affirmed.

All concur.