Everett v. Butler

GANTT, J. This is an action of ejectment commenced in the Washington Circuit Court for lots 6 and 7 in block 82 of the town of Irondale, Washington county, Missouri. We are Hot advised by the abstract when this action was commenced, but there is a recital that an an [565] swer was filed March. 5, 1902. It was a general denial. It then recited “that the case came on for trial during the March term, 1902, when the following proceedings were had as per hill of exceptions filed and allowed according to law.” Elsewhere in this abstract it is said: ‘ ‘ Plaintiff on the 26th of August, 1902, filed her affidavit for appeal, which was granted to this court, and plaintiff filed her bill of exceptions showing the above matters and things, on the 11th of November, 1902, in accordance with the order of the court made and entered. ’ ’ Prom this last-mentioned recital taken in connection with the certificate of judgment and appeal filed by the appellant in this court under the short method, it sufficiently appears that a judgment was rendered in this cause in favor of the defendant on the 8th of March, 1902, and by another recital in the abstract, it appears that on March 10, 1902, the plaintiff filed a motion for a new trial, which said motion was by the order of the court continued to the next regular term in August, 1902, at which time the motion for new trial was overruled. By the recital that the bill of exceptions was filed on the 11th of November, 1902, it will appear that the bill of. exceptions was filed in vacation of the said Washington Circuit Court, inasmuch as by law a regular term of the circuit court of Jefferson county intervened in September, and there is no evidence in the record that the circuit court of Washington county was adjourned over to November. In the abstract we are not shown that the circuit court of Washington county, by its order of record, during the August term thereof, extended to plaintiff the time for the filing of her bill of exceptions to a time after the adjournment of the said August term, and if so what time was granted her, unless we are to accept the recital “that plaintiff filed her bill of exceptions showing the above matters and things on the 11th of November, in accordance with the order of the court made and entered,” as sufficient. We are of the opinion that this is not an abstract [566] of any order of record but merely a conclusion of tbe plaintiff. If the court granted plaintiff leave to file a bill of exceptions in vacation within a certain time, surely it was an easy matter to so state, and then when she states she filed her bill of exceptions on the 11th of November, 1902, we could have seen it was filed within the time. Moreover, the burden of showing that her exceptions had become a part of the record devolved upon plaintiff and it is made her duty to show the facts to the court and not draw her conclusions merely. This recital does not state that the judge of the court signed this bill of exceptions, and without his signature clearly the bill of exceptions became no part of the record. "We are exceedingly loth, to dispose of an appeal in this manner, but the opposite party has rights which cannot be ignored. He has made timely objection to this abstract, and insists that the plaintiff has failed to observe the rules of this court and her appeal ought to be dismissed. As the abstract now stands there is not enough before us to show the bill of exceptions was filed in vacation by leave of the court entered of record in term time and within the time allowed. The appeal is based entirely upon exceptions taken to the action of the trial court, and as the abstract fails to comply with the rules of this court, in that it is not indexed at all and it does not appear that the bill of exceptions is properly a part of the record, we are constrained to sustain the motion to dismiss the appeal, and it is so ordered. Burgess, P. J., and Fox, J., concur.