Barnes v. Winn

On motion for rehearing. Per Curiam. The judgment of the circuit court herein was affirmed because of appellant’s failure to file in this court a transcript. of the record from the circuit court fifteen days before the March term, 1888, to which term the cause was returnable. Appellant asks to have that judgment set aside ; and insists, with much pertinacity, that he is not in fault. The facts, substantially, are, that the judgment of the Jackson circuit court was rendered herein in November, 1887, and the appeal was perfected on the twenty-fourth day of December, 1887 ; and the case was ready for the transcript to be made out at once. The appellant had from the twenty-fourth day of December, 1887, to the twentieth day of February, 1888, in which to file his transcript in this court, a period of nearly two months. It devolves upon him to make a reasonable showing to this court for this delay. The utmost that can be said in his favor is, that his attorney seems to have relied upon what he regarded as the duty of the clerk to make out the transcript without any special order from him, and forward the same here ; that he was of the impression that he did direct the clerk to make out the transcript in time for the March term of this court. On the other hand, the affidavits of the [487] clerk and type-writer show that in fact no such direction was given; and that had it been given the transcript would have been completed in ample time. The affidavit of the clerk states that it is the rule of the office not to make out such transcripts unless ordered by the attorney for appellant, as it is not known otherwise but that the parties may have settled the matter, or that the appellant may have abandoned his. appeal. In such case should the clerk of his own motion make out the transcript he would have no claim on the appellant for his fees. It was long since held by the Supreme Court that it is the duty of the appellant to see that his transcript is made out and filed in the appellate court. He cannot excuse himself by depending upon the clerk to perform this duty. Caldwell v. Hawkins, 46 Mo. 263; Reading v. Chapman, 46 Mo. 218. This has been the uniform holding of this court. McCaffery v. Railroad, ante, p. 340. At all events the appellant in order to have shown proper diligence should have evinced a disposition to prosecute his appeal without delay, by calling on the clerk and requesting him to make out the transcript. Instead of this, no such order was left with the clerk until about the thirtieth day of April, 1888, over four months after the appeal was taken. We fail to discover from the showing made on this motion any reason why the appellant could not have had his transcript here by the twentieth day of January, the day on which this court made its order assigning cases for hearing on the March docket. By reason of his neglect he delays the hearing of the case for one term. What we have said respecting this matter in McCaffery v. Railroad, supra, is applicable to this case. It is further urged against the action of the court in affirming the judgment, that the respondent did not present to this court a full and complete transcript of the record as required by section 3717, Revised Statutes, as amended by the act of 1885. Laws Mo. 1885, p. 216 [488] By the act of 1883 (Laws Mo. 1883, p. 122) it is sufficient, as a basis for such affirmance of judgment, for the respondent to 'present to the appellate court the certificate of the clerk, showing the judgment, etc., as was done in this case. This act is applicable to the Kansas City Court of Appeals. Kamerick v. Castleman, 21 Mo. App. 120. But it is claimed that by the act of 1885, supra, the statute of 1883 was repealed, and that the appellate courts, in this respect, are now remitted back to the operation of the old rule under section 3717, Revised Statutes, 1879. We have held otherwise, in unreported decisions, and' have treated the provisions of the act of 1883 as still in force. Our opinion has been, and is, that it was never the design of the legislature, by the amendatory act of 1885, to repeal the act of 1883. Its whole purpose was to place the Kansas City Court of Appeals on the same basis, in this particular, as the Supreme Court and the St. Louis Court of Appeals, the framer of the amendment and the legislature not being mindful at the time, that in the act organizing the Kansas City Court of Appeals, adopting the provisions of the practice act, which embraced said section 3717, Revised Statutes, the amendatory act of 1883 was by operation of law made applicable to the Kansas City Court of Appeals. The amendment of 1885, as a matter of law, was wholly unnecessary to accomplish the purpose the legislature had in view by the act of 1885. The Supreme Court continues as heretofore, as does the St. Louis Court of Appeals, to affirm judgments on the clerk’s certificate under the act of 1883. Until the Supreme Court shall hold that the act of 1885 had the effect to repeal the act of 1883, we shall regard it as in force, and applicable to the matter of affirming judgments in this court. If deemed important, we think we could present many reasons, and authorities, for the position that the effect of the act of 1885 was not to repeal by implication the act of 1883. The motion is denied.