Morrison v. LeHew

• Decision Date: 05 May 1885
• Citation: 17 Mo.App. 633
• Parties: D. A. MORRISON ET AL., Respondents, v. J. A. LEHEW, Appellant.
• Court: Missouri Court of Appeals

17 Mo.App. 633

D. A. MORRISON ET AL., Respondents,

v.J. A. LEHEW, Appellant.

St. Louis Court of Appeals, Missouri.

May 5, 1885.

APPEAL from the Clark County Circuit Court, TURNER, J.

Affirmed with ten per cent. damages.N. P. GIVENS and W. L. BERKHEIMER, for the appellant.

HOWARD and WOOD & MONTGOMERY, for the respondents.

ROMBAUER, J., delivered the opinion of the court.

Plaintiffs sued defendant for a balance of $180.25 alleged to be due to them from defendant, for goods sold and delivered. Defendant answered denying plaintiffs' claim, and averring an accounting between himself and plaintiffs, and a settlement of the matters in controversy between them based upon such accounting. Defendant further answering claimed that he had fully complied with the terms of such settlement, and prayed judgment accordingly.

Upon the trial of the cause, the jury found for plaintiffs, and assessed their damages at $159.43-100, for which amount and costs judgment was entered in favor of plaintiffs.

The defendant, appellant, filed a transcript of the record in this court, which purports to contain all the evidence offered upon the trial of the cause. Plaintiffs, claiming that the evidence was embodied in such transcript without any warrant of law, moved this court, under the provisions of the act approved April 2, 1883 (Sessions Acts 1883, p. 124) for an order upon the clerk of the Clark County circuit court, commanding him to transmit to this court the original bill of exceptions filed by defendant in said cause. This instrument is now before us, and as far as it has any reference to any testimony offered at the trial, is in words and figures as follows:

“Be it remembered that on the trial of this cause the following proceedings were had. The defendant to sustain the issues on his part, offered evidence as follows (insert evidence). The plaintiff to sustain the issues on his part, offered evidence as follows, (insert). This was all theevidence offered.

It is needless to say that this bill is insufficient to authorize any one to insert any evidence into the transcript, and thus make it part of the record. Records are made by order of the court and not by order of counsel or voluntary action on the part of clerks.-- United States v. Gamble, 10 Mo. 459; Christy v. Myers, 21 Mo. 114; Blount v. Zink, 55 Mo. 455; Jefferson City v. Opel, 67 Mo. 394; Ober v. Railroad Company, 13 Mo. App. 84. Such being the case we must find that the evidence has been inserted into the...