Lucas v. Heuston

MARSHALL, J. — This is an action in ejectment to recover a strip of land five feet wide by one hundred and sixty feet long, off of the west side of the, southeast quarter of block 29 of Hall’s addition to Nevada, Missouri. The petition is in the usual form. .The answer is a general denial and a plea of the ten-year statute of limitations. The ease was tried before Hon. O. H. Hoss, as special judge, without the aid of a jury, on December 20, 1898, taken under advisement, and decided in favor of the defendant on December 81, 1898. Within due time, a motion for new trial was filed; all of which occurred at the November term, 1898, of the circuit court of Vemon county. The motion for new [659] trial was not passed upon at the November term, 1898, bnt was continued to the April term, 1899. During the April term, 1899, to-wit, on May 27, 1899, the motion for a new trial was overruled, and on the same day an appeal to this court was granted to the plaintiff, and he was also given until the first day of the July term, 1899, in which to file a bill of exceptions. Within the time allowed, to-wit, on July 8, 1899, he filed the bill of exceptions. On June 2, 1899, the clerk made out a certified copy of the judgment, as contemplated by section 813, Eevised Statutes 1899. This the plaintiff filed in this court on November 22, 1899. The defendant now moves to affirm the judgment for failure to prosecute the appeal, in this, that under section 812, Eevised Statutes 1899, the appeal having been taken more than sixty days before the October term, 1899, of this court, the appeal was returnable to that term, and the appellant failed to file in this court fifteen days before the first day of the October term, a perfect transcript or a certified copy of the judgment, as required by section 813, but instead of so doing, he filed the certified copy of judgment on November 22, 1899. The October term, 1899, of this court began on October 10, 1899. So that the certified copy of the judgment was not filed until forty-two days after that term began. No excuse for this failure is attempted. Under these circumstances, there is nothing left for this court to do but to affirm the judgment of the circuit court. The appeal was granted and the bill of exceptions was filed more than sixty days before the first day of the October term, 1899. The certified copy of the judgment is dated June 2, > 1899. There is no pretense that the clerk failed to notify the appellant of the completion of the certified copy of the judgment in time to have enabled him to file it in this court in the time required by law. Hence, even under the rule laid down in Land & Inv. Co. v. Martin, 125 Mo. 117, and in Cunningham v. Roush, 141 Mo. 640, the appeal was re660 tamable to tbe October term, 1899. And tbe same would be true under tbe new rule adopted by tbe court at tbe October term, 1901 (162 Mo. p. vi, following p. 781). Tbe judgment of tbe circuit court is therefore affirmed. . All concur.