Public-domain · open source
OpenJurist

107 Mo. App. 13

Bloch Queensware Co. v. Smith, Saxton & Co.

Missouri Court of Appeals

Decided April 25, 1904

Missouri Court of Appeals · decided 1904-04-25

— Hon. Nat. M. Sheltont Judge. (1) The court erred in sustaining defendant Smith’s motion for a new trial. A client is bound by the act of his attorney in court. The defendant filed two separate answers in this cause, neither of which were under oath, nor was any affidavit filed with the pleadings, denying the existence of the partnership of defendants, as required by section 746, Revised Statutes 1899.

Key passage — most relied on by later courts

“from reason and the sense in which it is used.”

quoted by 1 later decision, including Wilshire Construction Co. v. Union Electric Co.

Relies on St. Louis & San Francisco Railway Co. v. Gracy · Ensor v. Smith · Longdon v. Kelly

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1904-04-25

How this case has been cited

Cited by 7 later decisions — most recently March 1971

7 state decisions

3019041910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

ELLISON, J.

¶1This action is on an account. There was judgment for the plaintiff. Defendant thereupon, in due time, asked for a new trial and his motion to that effect was sustained and plaintiff appealed. We are not prepared to say that there was any abuse of the trial court’s discretion in granting the new trial. Where a new trial is granted justice may yet be done between the parties and an appellate court will look to the matter with less scrutiny than if it had been refused. Helm v. Bassett, 9 Mo. 52; Longdon v. Kelly, 51 Mo. App. 572; Ensor v. Smith, 57 Mo. App. 584; Powell v. Railway, 59 Mo. App. 335.

¶2But however that may be, we find that plaintiff was *15not at liberty to complain since it failed to file its bill of exceptions in the extended time allowed by the judge in vacation. The time was “extended to the October term of the Adair county circuit court, A. D. 1903.” The bill was not filed until the second day of that term. That was too late. “To the October term” meant to the first of the term, that is, up to and including the first day. In some of the cities of the State a term of court, especially the spring term, extends continuously over a period of six months. To say that when time to file a bill of exceptions is extended “to” such a term, meant that the whole period of the term might be taken is unreasonable. The word “to” has no one specific meaning in a legal sense, though it is generally a word of exclusion (Anderson’s Law Diet). Its meaning is ascertained from reason and the sense in which, it is used. Thus, if a boundary of land extends to a field, the field itself will not be included in the boundary. Montgomery v. Reed, 69 Maine 510. On the other hand, in State v. Flutcher, 166 Mo. 582, the time for filing a bill was “ extended up to the twenty-eighth day of June, 1901;” and the Supreme Court,, putting a reasonable, construction on those words, held that they meant to include the twenty-eighth day. And so, where the extension was “until” a certain day, such day is included in the time. St. Louis Ry. Co. v. Gracy, 126 Mo. 472. But, generally, if the time named as limiting the extension is designated by a word which includes an extended and indefinite number of days (as in this case to a certain term of court) then the word “to” should limit the time to the first day of such period. If the present order had been intended to include the whole term, the wqrd “during” would unquestionably have been used. That word would have been an apt expression of such intention. Harwood v. Toms, 130 Mo. 242.

¶3The case being without a bill of exceptions and finding no error in the record proper, we affirm the judgment.

All concur.
/107/moapp/13 · .json · Public domain