Hanne v. Garvey

WALKER, P. J. -Appeal from the circuit court of the city of St. Louis. Bill of Exceptions. Untimely Filing. This is an appeal from an interlocutory judgment in partition determining the rights of the parties. Patrick Garvey, one of the defendants, appealed to this court, and the order granting same gave appellant thirty days from May 25, 1909, within which to file his bill of exceptions. On May 27,1909, the plaintiff filed a motion to set aside the order granting the appeal, and to strike the affidavit and bond therefor from the files, on the ground that an appeal did not lie from an interlocutory judgment in partition. The record does not show what disposition was made of this motion. On the 29th day of June, 1909, defendant, who seems until this date to have taken no further steps to perfect his appeal after the entry of the order granting [108] same, asked and was granted sixty days additional time within which to file his bill of exceptions. From time to time thereafter extensions of time, within which to file the bill, were granted nntil November 30, 1909, when it was filed within the time granted by the last extension. Upon this record we are asked to review the proceedings of the trial court. There is nothing before us except the record proper. [Priddy v. Hayes, 204 Mo. 358, 365.] The defendant allowed the thirty days’ time granted him, within which to file Ms bill of exceptions, to lapse and took no steps to perfect his appeal until June 29, 1909, or four days after the time granted had expired. Under the statute, then in force (See. 2029, R. S. 1909), the application for an extension of time within which to file the bill was not timely. [Cartwright v. Liberty Tel. Co., 205 Mo. 126, 131; State v. Eaton, 191 Mo. 151, 156; Fulkerson v. Murdock, 123 Mo. 292, 296.] Defendant contends that his lack of earlier action to perfect his appeal was due to the filing and pend-ency of plaintiff’s motion to set aside the order granting the appeal. There is no merit in tHs contention. Plaintiff’s motion had no effect upon the time granted the defendant; it was the latter’s duty to act within the time limited by the court. It has even been held in criminal cases, in which the courts tend, if possible, to a more liberal construction of the statutes in behalf of appellants, that although counsel for appellant may be misled by the prosecuting attorney as to the time granted by the court within which to file a bill, and it is signed and filed after the expiration of such time, there is no bill of exceptions before the appellate court, and only the record proper will be reviewed. [State v. Moore, 203 Mo. 624.] This for the patent reason that the record defining an appellant’s rights speaks with definiteness and certainty, and by this he must be governed and not rely upon opposing counsel, or other sources of information, to regulate his actions. The [109] motion filed by tbe plaintiff in this case, so far as the record shows, was ignored by the trial court, and upon what theory it was permitted to be filed we are unable to determine, as its only allegation is in the teeth of an express statute (R. S. 1909, sec. 2038) which provides that, appeals may be had “from any interlocutory judgments in actions of partition which determine the rights of the parties,” all of which requisites were present in the instant case. The pleadings are sufficient to fairly present the issues in a case of this character; the record entries evidencing the court’s action, culminating in a judgment, are, when subjected to the tests of well-estaff lished precedents, not subject to substantial criticism. The judgment of the trial court is, therefore, affirmed. Brown, P. J., and Paris, J., concur.