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Appearance at any time before the cause on the docket for October, November and is called for hearing.

December, 1909, which are then submitted. Rule 28.—ALLOWANCE TO GARNISH- (Adopted July 20, 1909.) EES. Garnishees claiming any allowance in this court must do so on or before a final Rule 33. In order to avoid disposing of submission of the cause on briefs. They appeals on points of appellate procedure shall accompany the claim for allowance and mainly the insufficiency of abstracts of with a sworn statement of expenditures paid record, and to facilitate, instead, the disposior incurred upon the appeal.

tion of appeals on their merits, this rule is

adopted to take effect August 1, 1910. Rule 29.-SERVICE OF ABSTRACTS AND BRIEFS IN CRIMINAL CASES. The tion the sufficiency of the appellant's ab

If in any case a respondent wishes to quesattorneys for appellants, in criminal cases stract of the record, he shall file his objecin which transcripts have been filed in the tions in writing in the office of the clerk of office of the clerk of this court sixty days this court within ten days after a copy of before the day the cause is docketed for said abstract of the record has been served hearing, shall, at least thirty days before upon him, and in said writing shall distinctly the day of hearing, file in the office of the specify the supposed defects and insufficienclerk of this court a printed statement, con- cies of the said abstract. The appellant shall taining apt references to the pages of the be served by the respondent with a copy of transcript, assignment of errors and brief the objections on or before the day they are of points and argument, and serve a copy filed with the clerk. If the respondent shall thereof upon the attorney acting as prosecut omit to file written objections to the appeling officer in the trial court or his succes. lant's abstract within said time so that this sor in office, and thereupon, such attorney court may pass upon them before the appeal shall, fifteen days before the day of trial, is submitted for decision, the court will, if it serve defendant or his counsel with a copy deems proper, disregard any objection to said of his statement and brief.

abstract thereafter made by the respondent. When a criminal case shall be advanced In order to enable this court to pass on such on the docket, the court shall designate the objections to the appellant's abstract, the aptime for filing statements and briefs.

pellant shall, immediately, on being served When appellants have been allowed to with a copy thereof, file at least one copy prosecute their appeals as poor persons, by and also his answer, if any he has, to the re

of his abstract with the clerk of this court the trial court, counsel will be permitted to file typewritten briefs and statements.

spondent's objections.

In cases in which the transcript has been filed

(Adopted July 12, 1910. To take effect August thirty days before the day on which the

1, 1910.) cause is docketed, counsel for appellant shall

Rule 34. An appellant having filed a cerfile their statements, briefs and assignments tified copy of the order granting an appeal, of error fifteen days before the hearing, and

(a) Need not abstract the record entries the prosecuting officer, his brief and state- showing the steps taken in the trial court to ment five days before the hearing.

perfect such appeal. If the abstract states Rule 30.-RETURN OF ORIGINAL | that the appeal was duly taken, then, absent WRITS. Original writs or other process a certified transcript of the record showing to issued by the court, or by any judge in va- the contrary, it will be presumed that the cation, may be made returnable to the court proper steps were taken at the proper time as such judge in vacation may order.

and term. Rule 31.—WITHDRAWING RECORDS. (b) No appellant or plaintiff in error need No record in any cause shall be taken from abstract record entries evidencing his leave the clerk's office, except on written order to file or various extensions of time granted of one of the judges of this court, which for filing, a bill of exceptions, but it will be may be given to counsel in the cause for sufficient if his abstract states that the bill the purpose of having a copy or abstract of exceptions was duly filed. thereof printed, and upon counsel receipting The burden, in either of the above parafor the same and agreeing to return it with graphs a or b will then be upon the respondin a time specified in the order by the judge ent or, in writs of error, upon defendant in or by the clerk of this court.

error, to produce in this court a transcript Rule 32.-REPEAL OF FORMER RULES. of the record, or of as much thereof as is All former rules not included herein as necessary, duly certified by the clerk of the above, are hereby repealed; and the forego- trial court, showing the contrary to be the ing rules shall be in effect on and after fact, if he make the point. August 15, 1909: Provided, however, that (C) When the respondent or defendant in the rules now in force as to abstracts and error desires to challenge the abstract of the briefs and the time and manner of filing record for any of the above defects, he shall 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 Rule 22.-AGREED STATEMENT OF

exceed thirty (30) minutes on each side. Cross-appeals shall be treated

as

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 reconsideration of the cause, and must be miss an appeal or writ of error, or to affirm

desiring to present a motion either to disfounded 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 recision, as the case may be, must be dis- sides outside the city of St. Louis, twentytinctly and particularly set forth in the four hours' notice for each fifty miles and 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-1 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 appearance at any time before the cause on the docket for October, November and is called for hearing.

December, 1909, which are then submitted. Rule 28.-ALLOWANCE TO GARNISH- (Adopted July 20, 1909.) EES. Garnishees claiming any allowance in this court must do so on or before a final Rule 33. In order to avoid disposing of submission of the cause on briefs. They appeals on points of appellate procedure shall accompany the claim for allowance and mainly the insufficiency of abstracts of with a sworn statement of expenditures paid record, and to facilitate, instead, the disposior incurred upon the appeal.

tion of appeals on their merits, this rule is

adopted to take effect August 1, 1910. Rule 29.-SERVICE OF ABSTRACTS

If in any case a respondent wishes to quesAND BRIEFS IN CRIMINAL CASES. The

tion the sufficiency of the appellant's abattorneys for appellants, in criminal cases

stract of the record, he shall file his objecin which transcripts have been filed in the tions in writing in the office of the clerk of office of the clerk of this court sixty days this court within ten days after a copy of before the day the cause is docketed for said abstract of the record has been served hearing, sball, at least thirty days before upon him, and in said writing shall distinctly the day of hearing, file in the office of the specify the supposed defects and insufficienclerk of this court a printed statement, concies of the said abstract. The appellant shall taining apt references to the pages of the be served by the respondent with a copy of transcript, assignment of errors and brief the objections on or before the day they are of points and argument, and serve a copy filed with the clerk. If the respondent shall thereof upon the attorney acting as prosecut- omit to file written objections to the appeling officer in the trial court or his succes- lant's abstract within said time so that this sor in office, and thereupon, such attorney court may pass upon them before the appeal shall, fifteen days before the day of trial, is submitted for decision, the court will, if it serve defendant or his counsel with a copy deems proper, disregard any objection to said of his statement and brief.

abstract thereafter made by the respondent. When a criminal case shall be advanced In order to enable this court to pass on such on the docket, the court shall designate the objections to the appellant's abstract, the aptime for filing statements and briefs.

pellant shall, immediately, on being served When appellants have been allowed to with a copy thereof, file at least one copy prosecute their appeals as poor persons, by and also his answer, if any he has, to the re

of his abstract with the clerk of this court the trial court, counsel will be permitted to file typewritten briefs and statements. In

spondent's objections. cases in which the transcript has been filed (Adopted July 12, 1910. To take effect August thirty days before the day on which the

1, 1910.) cause is docketed, counsel for appellant shall

Rule 34. An appellant having filed a cerfile their statements, briefs and assignments tified copy of the order granting an appeal, of error fifteen days before the hearing, and (a) Need not abstract the record entries the prosecuting officer, his brief and state- showing the steps taken in the trial court to ment five days before the hearing.

perfect such appeal. If the abstract states Rule 30.-RETURN OF ORIGINAL that the appeal was duly taken, then, absent WRITS. Original writs or other process a certified transcript of the record showing to issued by the court, or by any judge in va- the contrary, it will be presumed that the cation, may be made returnable to the court proper steps were taken at the proper time as such judge in vacation may order.

and term. Rule 31.—WITHDRAWING RECORDS. (b) No appellant or plaintiff in error need No record in any cause shall be taken from abstract record entries evidencing his leave the clerk's office, except on written order to file or various extensions of time granted of one of the judges of this court, which for filing, a bill of exceptions, but it will be may be given to counsel in the cause for sufficient if his abstract states that the bill the purpose of having a copy or abstract of exceptions was duly filed. thereof printed, and upon counsel receipting The burden, in either of the above parafor the same and agreeing to return it with graphs a or b will then be upon the respondin a time specified in the order by the judge ent or, in writs of error, upon defendant in or by the clerk of this court.

error, to produce in this court a transcript Rule 32.-REPEAL OF FORMER RULES. of the record, or of as much thereof as is All former rules not included herein necessary, duly certified by the clerk of the above, are hereby repealed; and the forego- trial court, showing the contrary to be the ing rules shall be in effect on and after fact, if he make the point. August 15, 1909: Provided, however, that (c) When the respondent or defendant in the rules now in force as to abstracts and error desires to challenge the abstract of the briefs and the time and manner of filing record for any of the above defects, he shall

as

which notice shall be served upon such coun- | least five days after service thereof, be filed sel within 10 days after the abstract has with the clerk of this court, together with been served, failing which, no such objection certified transcript of record above required. will be entertained. Such notice, shall, at (Adopted December 14, 1912.)

Rules of Practice in the Springfield Court of Appeals

Adopted August 19, 1909.

Rule 1.-PRESIDING JUDGE. The Pre- | by affidavit. At least twenty-four hours nosiding Judge shall superintend all matters of tice shall be given to the adverse party, or order in the court room.

bis attorney, previous to making the appli

cation. The court may of its own motion, at Rule 2.— WORDS APPELLANT AND RE- any time, require the clerk of the trial court SPONDENT, WHAT THEY INCLUDE. to send up a complete transcript. Whenever the word appellant or respondent appear in these rules it shall be taken to Rule 7.-NOTICE OF WRITS OF ERROR. mean and include plaintiff or defendant in All notices of writs of error, with the acerror, or other parties occupying like posi- ceptance, waiver or return of service intions in a cause, and when the term appeal dorsed thereon, shall be filed with the clerk is used it shall be held to include writs of of this court, and by him attached to the error, unless the contrary appears.

transcript in the cause, and shall be the only

evidence that such notice has been given. Rule 3.-MOTIONS. All motions shall be in writing, signed by counsel, and filed with the clerk of the court. No paper shall be

Rule 8.-REVIEWING INSTRUCTIONS. received or filed by the clerk in any cause For the purpose of reviewing the action of pending in this court, unless indorsed with the trial court in giving and refusing instructhe names of one or more of the parties, ap- tions, it shall not be necessary to set out the pellant or respondent, the general nature evidence in the bill of exceptions ; but it of the motion, and the name of the counsel shall be sufficient to state that there was tendering it. The clerk will enter on the evidence tending to prove the particular fact clerk's motion docket, and also on the motion or facts. If the parties disagree as to what docket of the court, all motions

ed, as well fact or facts the evidence tends to prove, then as the date of filing, immediately on filing the evidence of the witnesses may be stated thereof. No motion shall be argued orally, in a narrative form, avoiding repetition and unless by leave of court.

omitting all immaterial matter.

Rule 9.-BILLS OF EXCEPTIONS IN Rule 4.-HEARING OF CAUSES. Except in causes whereof this court has original ju- EQUITY CASES. In cases of equitable jurisdiction, no cause shall be heard before it risdiction, the whole of the evidence shall be is reached in its regular order on the docket, that it shall be sufficient to state the legal

embodied in the bill of exceptions; provided unless, in the opinion of the court, circum- effect of documentary evidence where there is stances exist which entitle it to precedence; and any motion to advance a cause on the effect thereof; and provided, further, that

no dispute as to the admissibility or legal docket shall be accompanied by affidavits showing particularly the facts on which such parol evidence, whether given orally in court motion is based. When a cause is advanced, rative form where this can be done, and

or by deposition, may be reduced to a narthe record, as well as the briefs, shall be

at the same time preserve the full force and printed, unless the court shall otherwise or

effect of the evidence. der.

Rule 5.—DIMINUTION OF RECORD. No Rule 10.-DUTY OF THE CLERK IN suggestion of diminution of record in civil MAKING UP TRANSCRIPTS. The clerks cases will be entertained by the court after of the several circuit courts and other courts joinder in error, except by consent of parties. of first instance, before which a trial of any

cause is had in which an appeal is taken Rule 6.–CERTIORARI TO PERFECT (unless exception is saved to the regularity RECORD. Whenever a writ of certiorari of the process or its execution, or to the to perfect record is applied for, the motion acquiring by the court of jurisdiction of the shall state the defect in the transcript which cause), in making out transcripts of the recit is designed to supply, and shall be verified ord for this court, shall not set out the original or any subsequent writ, or the return a copy of his abstract of the record at least thereof; but in lieu thereof shall say (e. g.): twenty days before the day on which the "Summons issued on the

day of cause is set for hearing, and file six copies 190_, executed on the day of l thereof with the clerk of this court not later

190—;" and if any pleading be than the day preceding the one on which the amended, the clerk in making out transcripts, case is set for hearing. If the respondent dewill treat the last amended pleading as the sires to file a further or additional abstract, only one of that class in the cause, and shall be shall deliver to the appellant a copy therenot set out any abandoned pleading or cap- of at least five days before the cause is set tion or notices or certificates to depositions, for hearing, and file six copies thereof with nor insert in the transcript any matter touch the clerk of this court on the day preceding ing the organization of the court, or any or that on which the cause is to be heard. der of continuance, or any motion, or affidavit in the cause, unless the same be spe

Rule 15.-ABSTRACTS, WHAT THEY cially called for by bill of exceptions.

SHALL CONTAIN. Abstracts shall be print

ed in not less than ten point (long primer) Rule 11.-PRESUMPTION THAT BILL type, and shall be paged and have a complete OF EXCEPTIONS CONTAINS · ALL THE index at the end thereof, and shall set forth EVIDENCE. The only purpose of a state

so much of the record as is necessary to a ment in a bill of exceptions, that it sets full and complete understanding of all the out all the evidence in a cause, being that questions presented to this court for decithis court may have before it the same mat. sion. Where there is no question made over ter which was decided by the trial court, it the pleadings, or over deeds or other docushall be presumed as a matter of fact, in all mentary evidence, it shall be sufficient to set bills of exceptions, that they contain all the out the substance of such pleadings or docuevidence applicable to any particular ruling mentary evidence. The evidence of witnesses to which exception is saved.

shall be stated in a narrative form, except

when the questions and answers are necesRule 12.-ABSTRACTS IN LIEU OF sary to a complete understanding of the eviTRANSCRIPTS WHEN FILED AND SERV. dence. When there is any question made conED. In those cases where the appellant cerning the pleadings, or the admissibility or shall, under the provisions of section 2048, legal effect of any documentary evidence, the Revised Statutes of 1909, file in this court pleadings and such documentary evidence a copy of the judgment, order or decree, in must be set out in full with the indorsements lieu of a complete transcript, he shall de thereon; and in all other matters the abliver to the respondent a copy of his abstract stract must set forth a copy of so much of at least thirty days before the cause is set the record as is necessary to be consulted for hearing, and shall in like time file six in the disposition of the errors assigned. copies thereof with the clerk of this court. Provided: In all cases wherein there are If the respondent is not satisfied with such statements or other evidence in the printed abstract, he shall deliver to the appellant a abstract of the record (including the bill of complete or additional abstract at least fif- exceptions) tending to show the filing in teen days before the cause is set for hearing, proper time, of the motion for new trial, or and within like time file six copies thereof in arrest of judgment, or affidavit for apwith the clerk of this court. Objections to peal, and any statement that the bill of exsuch complete or additional abstracts shall ceptions was signed, sealed or made a part be filed with the clerk of this court within of the record will be taken to be a statement ten days after service of such abstract upon that said bill of exceptions was signed, sealthe appellant, and a copy of such objections ed and filed and made a part of the record shall be served upon the respondent in like at the proper time and in the proper mantime.

ner, such abstract shall be deemed sufficient

as to any of the aforesaid matters, and in Rule 13.-PRINTED TRANSCRIPTS. A

motions challenging the sufficiency of the printed and indexed transcript duly certified abstract as to such matters, it will not be a by the clerk of the trial court may be filed sufficient objection to state that the abstract instead of a manuscript record, and in all does not show such steps were taken in propcases six printed and indexed uncertified

er time or in a proper manner, but the mocopies of the entire record filed and served tion must specifically allege that as a matwithin the time prescribed by these rules ter of fact such steps were not taken at all, or for serving abstracts, shall be deemed a full not in proper time or in proper manner, as the compliance with this rule, and dispense with

case may be, and thereupon, the court shall the necessity of any further transcript.

determine the matter and the costs thereof

shall be taxed as the court shall deem just. Rule 14.-ABSTRACTS, WHEN FILED (Amended January 3, 1911, to take effect FebAND SERVED. In all cases where a com

ruary 1, 1911.) plete written or printed transcript is brought Rule 16.-WHEN APPEAL IS RETURNto this court in the first instance, the appelABLE; CERTIFICATE OF JUDGMENT ;

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