Thompson & Letton v. Clear Jack Mining Co.

PER CURIAM. — This action was brought to enforce a mechanic’s lien and judgment in the trial court was rendered for the plaintiffs. Defendant took exceptions to the action of the court at the trial and when judgment was finally rendered it appealed to this court. It then ( December 10, 1904) obtained leave of court, in session, to file its bill of exceptions, on or before 19th of March,-1905. Afterwards, in vacation, there is an unsigned vacation entry in the record stating that “the* court” extended the time until on or before the 1st of May, 1905. Afterwards (on March 27) another vacation entry is made by copying stipulation of attorneys for the respective parties, dated March 24, 1905, extending time to the third day of May, 1905, term. Afterwards, on May 1st, the court in session extended the time to on or before the first of July, 1905. Afterwards, in vacation (on June 30, 1905), there is an unsigned entry extending time to on or before August 10th, 1905. And afterwards (on July 1, 1905), another unsigned vacation entry extends the time to the same day. AfterAvards, in vacation (on July 25, 1905), time was again extended by an unsigned entry to the 10th of September, 1905. Afterwards (on September 4), the court in session extended time to the first day of the next term, January 1, 1906. Afterwards, on first day of said term, the court in session extended time to on or before the 10th of March, 1906. And then the bill appears to have been filed Avithin that time, toAvit, the 19th day of February, 1906. By provision of the statute (section 728, Revised Statutes 1899) the time for filing a bill of exceptions may be extended by order of the court in session; or by order of the judge in vacation; or by stipulation of the parties, or their attorneys. It will be noticed that there Avere several extensions purporting to have been made in vacation, but not appearing by Avhom made. An ex-tention in vacation when not made by the parties or their 526 attorneys, can only be made by tbe judge and it should appear that it was made by him. The mere statement of the clerk on the record, without anything mo-re, that the time was extended, is not recognized in the statute aforesaid as one of the modes of extension. Such extensions being unauthorized, there was a break in the time between the extensions made by the court in session. That is to say, between the proper orders of extension by the court there was a break attempted to be covered by these insufficient entries in vacation. And this was not cured by the extension made by the attorneys. There is therefore no bill of exceptions in the case. [Burdoin v. Trenton, 116 Mo. 358; Bick v. Williams, 181 Mo. 526.] An examination of the record proper does not disclose any error and the judgment is affirmed.