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Rule 16.-CITING AUTHORITIES IN according to the opinion entertained by this BRIEFS. In compliance with section 863, court respecting the same. Revised Statutes 1899, the statement filed by
Rule 20.—MOTION FOR REHEARING. the appellant shall consist of a clear and Motions for rehearing must be accompanied concise statement of the case without ar- by a brief statement of the reasons for a regument, reference to issues of law or repe consideration of a cause, and must be founded tition of testimony of witnesses. That state
on papers showing clearly that some question ment shall be followed by the brief, which decisive of the cause, and duly presented by shall contain a statement of the points on counsel in their brief, had been overlooked by which the appellant relies for a reversal of the court, or that the decision is in conflict the judgment. In citing authorities in sup with an express statute, or with a controlling port of any proposition, it shall be the duty decision to which the attention of the court of counsel to give the names of the princi- was not called. Such motion and statement pal parties to any case cited from any report must be filed within ten days after the delivof adjudged cases as well as the number of ery of the opinion, and a copy of the motion, the volume and the page where the same
with the accompanying statement or brief, will be found; and when reference is made shall be served upon the opposite counsel; but to a passage in any elementary work or trea
no motion for a rehearing shall be filed after tise, the number of the edition, the volume, the final adjournment of the court. the chapter, the section, the paging and sidepaging shall be set forth. The respondent,
Rule 21.-MOTION FOR AFFIRMANCE. in his statement, may adopt that of appel- on motion for affirmance, under section lant; or, if not satisfied with such state-3717, Rev. St. 1879, as amended by act conment, he shall correct any errors therein. cerning practice in civil cases, approved The purpose of this rule is to enable the March 24, 1883, the mere fact that the apcourt to be informed of the material facts of pellant has on file, or presents a copy of the the case by the statements, without being transcript, at the time such motion is made, compelled to glean them from the abstract shall not of itself be deemed good cause of the record. Any statement not comply within the meaning of said law. ing with this rule shall be disregarded.
Rule 22.-EXTENDING TIME FOR FIL
ING STATEMENT, ABSTRACTS, ETC. In Rule 17.-APPELLANT'S BRIEF TO AL
case will extension of time for filing LEGE ERRORS COMPLAINED OF. The
statements, abstracts, and briefs be granted, brief on behalf of appellant or plaintiff in er- except upon affidavit showing satisfactory ror shall distinctly and separately allege the errors committed by the inferior court, and
Rule 23.—ORAL ARGUMENTS. When a no reference will be permitted in the oral argument to errors not thus specitied, nor any
cause is called for argument, the appellant, reference by either counsel to any authority
or plaintiff in error, will make a statement not cited in his brief, unless for good cause of the cause prepared by him, and will then shown the court shall otherwise direct.
proceed to argue for a reversal or modifica
tion of the judgment of the court below; the Rule 18.—PENALTY FOR FAILURE TO defendant in error, or respondent, will thereCOMPLY WITH RULE 15. If any appellant upon make his statement and answer him; or plaintiff in error, in any civil cause, shall and the appellant, or plaintiff in error, will fail to comply with the provisions of rule reply and close the argument. The whole numbered 15, the court, when the cause is time consumed by either side, in this statecalled for hearing, will dismiss the appeal or ment and argument, shall not exceed sixty writ of error, or, at the option of respondent minutes, unless the court, for cause shown or defendant in error, continue the cause, at before the commencement of the argument in the costs of the party in default. No oral ar any particular case, shall otherwise order. gument will be heard from any counsel fail- Cross appeals shall be treated as one cause, ing to comply with the provisions of rule 15. and in such cases the plaintiff in the trial
court shall be entitled to open and close the Rule 19.–AGREED STATEMENT OF THE argument. Counsel will not be permitted in CAUSE OF ACTION. Parties may, in the any case to read to the court a written or courts of first instance, agree upon any state printed argument. ment of the cause of action, the defense and the evidence, together with the rulings of the
Rule 24.-NOTICE ON MOTION TO DIScourt thereupon and the exceptions saved to MISS OR AFFIRM. A party in any cause any ruling, which may intelligently present filing a motion, either to dismiss an appeal to this court the matters intended to be re or writ of error or to affirm the judgment viewed, and this statement, with a certificate of the trial court, shall first notify the adby the judge before whom the cause was verse party or his attorney of record, at tried, that the same is a substantial history least twenty-four hours before making the of what occurred at the trial of the cause, motion, by telegraph, by letter, or by written shall be treated as the record in this court, notice, and shall, on filing such motion, satand the judgment rendered in the court of isfy the court that such notice bas been givfirst instance shall be affirmed or reversed, I en.
Rule 25.—WHEN APPEAL IS RETURN- lapt shall file a certificate of the judgment as ABLE-CERTIFICATE OF JUDGMENT— and when required by said section 813, Rev. TRANSCRIPT. In all cases where appeals St. 1899. shall be taken or writs of error sued out to
(Adopted January 5, 1903.) this court after September 1, 1903, the appellant shall file with the clerk of this court a
Rule 26.-RECORD ENTRIES PERFECT. full transcript or in lieu thereof a certificate ING APPEAL NOT TO BE ABSTRACTED. of judgment, as provided by section 813, Rev. -Hereafter an appellant, filing here a certiSt. 1899, within the time by said section pro- need not abstract the record entries showing
fied copy of the order granting an appeal, vided, and the date of the allowance of the ap- the steps taken below to perfect such appeal and not the time of filing the bill of exceptions after the appeal is granted, shall de- peal. If the abstract state the appeal was termine the term of this court to which such duly taken, then, absent a record showing appeal is returnable; and when the appellant to the contrary, by respondent, it will be for any reason cannot or does not file a compresumed the proper steps were taken at the plete transcript, he shall file within the time proper time and term. allowed by said section of the statutes a
Hereafter no appellant need abstract rectificate of judgment, and may thereafter file a
ord entries evidencing his leave to file, or complete transcript and abstract of the rec- filing of, a bill of exceptions. It shall be ord, or simply an abstract of the record. And sufficient if his abstract state the bill of exneither the fact that this court has heretofore ceptions was duly filed. The burden is then held that the return term of the appeal is to on respondent to produce here the record be determined by the date of the filing of the showing the contrary to be true, if he make bill of exceptions, nor the fact that for any
the point. reason a complete transcript could not be filed
Anything in any rule to the contrary is in time for the return term shall be taken hereby abrogated. as an excuse, but in all such cases the appel- (Adopted January 6, 1913.)
Rules of Practice in the St. Louis Court of Appeals
Revised July 20, 1909. To be in Force August 15, 1909.
Rule 1.-PRESIDING JUDGE. The Pre- et, unless in the opinion of the court, cirsiding Judge shall superintend all matters of cumstances exist which entitle it to preceorder in the court room.
dence; and any motion to advance a cause on Rule 2.—WORDS APPELLANT AND RE- the docket shall be accompanied by affidavits SPONDENT, WHAT THEY INCLUDE. showing particularly the facts on which such Whenever the words appellant or respondent motion is based. When a cause is advanced, appear in these rules they shall be taken to the record, as well as the briefs, shall be mean and include plaintiff or defendant in printed, unless the court shall otherwise orerror, or other parties occupying like posi- der. tions in a cause, and when the term appeal Rule 5.–DIMINUTION OF RECORD. No is used it shall be held to include writs of er- suggestion of diminution of record in civil ror, unless the contrary appears.
cases will be entertained by the court after Rule 3.-MOTIONS. All motions in a cause
joinder in error, except by consent of parties. shall be in writing, signed by counsel, and
Rule 6.-CERTIORARI TO PERFECT filed with the clerk of the court. No paper RECORD. Whenever a writ of certiorari to shall be received or filed by the clerk in any perfect record is applied for, the motion shall cause pending in this court, unless indorsed state the defect in the transcript which it is with the names of one or more of the parties, designed to supply, and shall be verified by appellant or respondent, the general nature affidavit. At least twenty-four hours' notice of the motion, and the name of the counsel shall be given to the adverse party, or his tendering it. The clerk will enter on the attorney, previous to making the application. clerk's motion docket, and also on the motion The court may of its own motion, at any docket of the court, all motions filed, as well | time, require the clerk of the trial court to as the date of filing, immediately on filing send up a complete transcript, when the tranthereof. No motion shall be argued orally, script of the record is formally insuficient. unless by leave of court first bad, or un- Rule 7.-NOTICE OF WRITS OF ERless the court, of its own motion, directs oral ROR. All notices of writs of error, with the argument thereon.
acceptance, waiver or return of service inRule 4.—HEARING OF CAUSES. Except dorsed thereon, shall be filed with the clerk in causes whereof this court has original of this court, and by him attached to the jurisdiction, no cause shall be heard before transcript in the cause, and shall be the only
Rule 8.-REVIEWING INSTRUCTIONS. copy of the judgment, order or decree, in lieu For the purpose of reviewing the action of of a complete transcript, he shall make and the trial court in giving and refusing instruc- deliver to the respondent a copy of his abtions, it shall not be necessary to set out the stract at least thirty days before the cause is evidence in the bill of exceptions; but it set for hearing. If the respondent is not satisshall be sufficient to state that there was fied with such abstract, he shall, at least fif. evidence tending to prove the particular fact teen days before the cause is set for hearing, or facts. If the parties disagree as to what deliver to the appellant a complete or addifact or facts the evidence tends to prove, tional abstract. Objections to this complete then the evidence of the witnesses may be or additional abstract may be made and served stated in a narrative form, avoiding repeti- on opposing counsel within ten days after tion and omitting all immaterial matter. service of such abstract upon the appellant.
Six copies of the abstracts above referred to Rule 9.—BILLS OF EXCEPTIONS IN and of any objections thereto shall be filed EQUITY CASES. In cases of equitable ju- with the clerk not later than one (1) day berisdiction, the wbole of the evidence shall be fore the cause is docketed for hearing. embodied in the bill of exceptions; provided
(Adopted November 4, 1909.) that it shall be sufficient to state the legal effect of documentary evidence where there
Rule 13.--PRINTED TRANSCRIPTS. А is no dispute as to the admissibility or legal printed and indexed transcript duly certified effect thereof; and provided further that by the clerk of the trial court may be filed parol evidence, whether given orally in court! instead of a manuscript record, and in all or by deposition, may be reduced to a narra- cases six printed and indexed uncertified tive form where this can be done and at the copies of the entire record filed and served same time preserve the full force and effect within the time prescribed by these rules of the evidence.
for serving abstracts, shall be deemed a full
compliance with this rule and dispense with Rule 10.-DUTY OF THE CLERK IN the necessity of any further transcript. MAKING UP TRANSCRIPTS. The clerks of the several circuit courts and other courts Rule 14.-ABSTRACTS—WHEN FILED of first instance, before which a trial of AND SERVED. In all cases where a comany cause is had in which an appeal is taken plete written or printed transcript is brought (unless exception is saved to the regularity to this court in the first instance, the appelof the process or its execution, or to the ac
lant shall make and deliver to respondent a quiring by the court of jurisdiction of the copy of his abstract of the record at least cause), in making out transcripts of the rec- thirty days before the day on which the ord for this court, shall not set out the cause is set for hearing, and file six copies original or any subsequent writ, or the thereof with the clerk of this court not later return thereof; but in lieu thereof shall than the day preceding the one on which say (e. g.) "Summons issued on the
the case is set for hearing. If the respondent day of 190-, executed on the
desires to file a further or additional abday of
190—;" and if any pleading be stract, he shall deliver to the appellant a amended, the clerk in making out transcripts, copy thereof at least five days before the will treat the last amended pleading as the cause is set for hearing, and file six copies only one of that class in the cause, and shall thereof with the clerk of this court on the not set out any abandoned pleading nor cap- day preceding that on which the cause is to tion or notices or certificates to depositions, be heard. nor insert in the transcript any matter touch- Rule 15.--ABSTRACTS, WHAT THEY ing the organization of the court, or any or- SHALL CONTAIN. Abstracts shall be printder of continuance, or any motion, or affidavit ed in fair type, and shall be paged and have in the cause, unless the same be specially a complete index at the end thereof, and called for by bill of exceptions.
shall set forth so much of the record as is Rule 11.—PRESUMPTION THAT BILL necessary to a full and complete understandOF EXCEPTIONS CONTAINS ALL THE ing of all the questions presented to this EVIDENCE. The only purpose of a state court for decision. Where there is no quesment in a bill of exceptions, that it sets out tion made over the pleadings, or over deeds all the evidence in a cause being that this
or other documentary evidence, it shall be court may have before it the same matter sufficient to set out the substance of such which was decided by the trial court, it shall pleadings or documentary evidence. The evibe presumed as a matter of fact, in all bills dence of witnesses shall be stated in a narraof exceptions, that they contain all the evi
tive form, except when the questions and andence applicable to any particular ruling to
swers are necessary to a complete underwhich exception is saved.
standing of the evidence. When there is any
question made concerning the pleadings, or Rule 12.-ABSTRACTS IN LIEU of the admissibility or legal effect of any docuTRANSCRIPTS; WHEN FILED AND SERV- mentary evidence, the pleadings an! such ED. In those cases where the appellant documentary evidence must be set out in full shall, under the provisions of section 2048, with the indorsements thereon; and in all Revised Statutes of 1909, file in this court a' other matters the abstract must set forth a
copy of so much of the record as is neces- Rule 18.--BRIEFS, WHAT TO CONTAIN sary to be consulted in the disposition of the AND WHEN SERVED. The appellant shall errors assigned.
deliver to the opposing party a copy of his
brief thirty days before the day on which the Rule 16.—WHEN APPEAL IS RETURN- cause is set for hearing, and the respondent ABLE; CERTIFICATE OF JUDGMENT; shall deliver a copy of his brief to the opposTRANSCRIPT. In all cases where appeals ing party at least five days before the last shall have been taken or writs of error sued named date, and the appellant shall deliver a out to this court after August 1, 1908, the copy of his brief in reply to the opposing parappellant shall file with the clerk of this ty not later than the day preceding that on court a full transcript, or in lieu thereof, a which the cause is set for hearing, and six certificate of the judgment as provided by copies of each brief shall be filed with the section 2048, Revised Statutes of 1909, within clerk on or before the last named date. the time designated in said section, and the
All briefs shall be printed and shall condate of the allowance of the appeal, and not tain separate and apart from the argument the time of filing the bill of exceptions after or discussion of authorities, a statement, in the appeal is granted, shall determine the numerical order, of the points relied on, toterm of this court to which such appeal is gether with a citation of authorities apreturnable. When the appellant, for any propriate under each point. Any brief failing reason, cannot or does not file a complete to comply with this rule may be disregarded transcript, he shall file, within the time al- by the court. lowed by said section a certificate of the
The brief filed by appellant shall distinctly judgment and shall thereafter file a complete and separately allege the errors committed transcript and abstract of the record, or sim- by the trial court, and no reference will be ply an abstract of the record. Neither the permitted at the argument to the errors not fact that the Supreme Court nor this court thus specified, unless for good cause shown have heretofore held that the return term of this court shall otherwise direct. the appeal is to be determined by the date
Delivery of an abstract or brief to the atof the filing of the bill of exceptions, nor the torney of record of the opposing party shall fact that for any reason a complete tran- be deemed a delivery to such party under the script could not be filed in time for the re-foregoing rules, and the evidence of such deturn term shall serve as an excuse for fail- livery must be by the written acknowledg. ure to comply with this rule, but in all such ment of such opposing party or his attorney, cases the appellant shall file a certificate of or by the affidavit of the person making the the judgment as and within the time requir- service, and such evidence of service must ed by said section 813.
be filed in this court with the abstract or
brief. Rule 17.—COSTS, WHEN ALLOWED FOR PRINTING ABSTRACTS AND RECORDS. Rule 19.-CITING AUTHORITIES IN Costs will not be allowed either party for BRIEFS. In citing authorities in support of any abstracts filed in lieu of a full transcrint any proposition, it shall be the duty of coununder section 813, Revised Statutes 1899, sel to give names of the principal parties to which fails to make a full presentation of any case cited from any report of adjudged all the record necessary to be considered in
cases, as well as the number of the volume disposing of all the questions arising in the and the page where the same will be found; cause. In those cases brought to this court and when reference is made to a passage in by a copy of the judgment, order or decree, any elementary work or treatise, the nuninstead of on a full transcript, and in which ber of the edition, the volume, the section, the the appellant shall file in this court a print- paging or side paging shall be set forth. ed copy of the entire record, as and for an
Authorities incorrectly cited as to book, abstract, costs may be allowed for printing page or title of case, will be disregarded. the same.
Rule 20.-EXTENSION OF TIME. HereIn any case in which a manuscript record after in no case will extensions of time for filhas been or may hereafter be filed in this ing statements, abstracts or briefs be grantcourt, a reasonable fee for printing an ab-ed, except upon affidavit showing satisfactory stract of the record, or the entire record, may be taxed as costs upon the written stipulation of both parties to that effect. The Rule 21.-PENALTY FOR FAILURE TO affidavit of the printer shall be received in COMPLY WITH RULES 12, 14, 15, 16 AND every case, where costs may properly be tax- 18. If any appellant in any civil cause, ed for printing, as prima facie evidence of shall fail to comply with the provisions of the reasonableness thereof; and if the ad- rules 12, 14, 15, 16 or 18, the court when the verse party objects thereto, such objection cause is called for hearing, will dismiss the shall be filed within ten days after service of appeal, or writ of error, or at the option of notice of the amount of such charge. Not the respondent, continue the cause at the exceeding sixty-five cents a printed page will cost of the party in default. No oral argube allowed in any case for printing abstracts ment will be heard from any counsel failing or transcripts.
to comply with the provisions of rule 18, un
less said counsel is prevented from doing so, peals in causes originating before a justice of by failure of opposing counsel.
the peace, the time for argument shall not
exceed thirty (30) minutes on each side. Rule 22.-AGREED STATEMENT OF
Cross-appeals shall be treated one CAUSE OF ACTION. Parties may, in the courts of first instance, agree upon any state shall be entitled to open and close the ar
cause, and the plaintiff in the trial court ment of the cause of action, the defense and
gument. the evidence, together with the rulings of the
When two or more cases are heard togethcourt thereupon, and the exceptions saved er, the court, in its discretion, will allot the to any rulings, which intelligibly present to time to be given for argument. this court the matters intended to be review
Unless by permission of the court, counsel ed; and this statement, with a certificate by will not read to the court in extenso the writthe judge before whom the cause was tried, ten or printed argument on file, nor from rethat the same is a substantial history of ports or text books. what occurred, at the trial of the cause,
The above rule to be in force and effect on shall be treated as the record in this court.
and after June 6, 1910. Rule 23.-MOTIONS FOR REHEARING. Motions for rehearing must be accompanied MISS OR AFFIRM. A party in any cause,
Rule 25.--NOTICE ON MOTION TO DISby a brief statement of the reasons for a
desiring to present a motion either to disreconsideration of the cause, and must be
miss an appeal or writ of error, or to affirm founded on papers showing clearly that
the judgment of the trial court, shall notisome question decisive of the case, and duly fy the adverse party, or his attorney of recsubmitted by counsel, has been overlooked ord, by telegram, by letter or by written noby the court, or that the decision is in con
tice, personally served, of his proposed proflict with an express statute, or with a
ceeding. When said adverse party or his controlling decision of the Supreme Court, or with a decision of one of the other Courts attorney of record resides in the city of St. of Appeals; and the question so submitted Louis, such notice shall be given at least by the counsel and overlooked by the court, led for the hearing of the motion; when the
twenty-four hours before the time appointor the statute with which the decision condicts, or the controlling or conflicting de adverse party or his attorney of record re
sides outside the city of St. Louis, twentycision, as the case may be, must be dis
four hours' notice for each fifty miles and tinctly and particularly set forth in the motion, otherwise the motion will be disre
fraction over twenty-five miles, shall be garded. Such motion must be filed within given; and in all cases the court will reten days after the opinion of the court shall quire satisfactory proof that proper notice
has been given. be delivered, and notice of the filing thereof must be served on the opposite counsel. Rule 26.-MOTION FOR AFFIRMANCE. After a cause has been once reheard, and the On motion for affirmance under section 812, motion for rehearing overruled, no further Revised Statutes 1899, the mere fact that motion for rehearing or motion to set aside the appellant has on file, or presents a copy the order overruling the motion for rehear- of the transcript, at the time such motion ing, by the same party, will be entertained is made, shall not, of itself, be deemed good by the court or filed by the clerk. No mo- cause within the meaning of said law. tion to certify any case to the Supreme Court will be entertained nor shall any such mo
Rule 27.-APPEARANCE OF COUNSEL. tion be filed by the clerk. See Barnett et al. The counsel who represent the parties in v. Colonial Hotel B. Co., 119 S. W. 471, 177 the trial court, in any cause coming to this Mo. App. 477.
court, will be held to represent the same
parties, respectively, in this court; but should Rule 24 is hereby amended to read as fol. other counsel be engaged or retained in the lows:
cause, they must enter their appearance in Rule 24.-ORAL ARGUMENTS. When a writing, the counsel for the appellant ten cause is called for argument, the appellant days, and the counsel for the respondent will make his statement and proceed with five days before the first day of the term to his argument; the respondent will thereup-, which the appeal or writ of error is returnon make his statement and proceed with his able; and if counsel are employed after argument, the appellant replying, if he de said time, their appearance must be entered sires, and if he has not consumed all of his as soon as they are retained. Counsel failtime in opening. The whole time consumed ing to comply with this rule will not be by either party in statement and argument recognized in a cause, unless the consent, shall not exceed sixty (60) minutes, unless in writing, of the counsel of the opposite the court, for cause shown, and on applica- party to such appearance be filed with the tion made before the commencement of the clerk ten days before the day on which the argument in the case, shall otherwise order: cause is set for hearing. Appearance may be Provided, however, that the court may, in its entered by written notice to the clerk of this discretion shorten the time for argument in court, giving the name and address of the any case; and provided further, that in ap- counsel. Additional counsel may enter their