Hughes v. Henderson

• Decision Date: 09 June 1902
• Citation: 95 Mo. App. 312,68 S.W. 1069
• Parties: HUGHES v. HENDERSON.
• Court: Missouri Court of Appeals

68 S.W. 1069

95 Mo. App. 312

HUGHES v. HENDERSON.

Court of Appeals at Kansas City, Missouri.

June 9, 1902.

APPEAL — BILL OF EXCEPTIONS — ABSTRACT — SHOWING OF FILING — DISMISSAL OF APPEAL.

1. A bill of exception cannot be considered on appeal unless the abstract shows an entry on the record proper ordering it to be filed, though the bill itself states it was filed.

2. On appeal, errors on the face of the record proper may be considered, though there is no bill of exceptions.

3. When the order granting an appeal is so defective that the appellate court acquires no jurisdiction, the cause must be stricken, and no errors can be considered.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by P. J. Hughes against Alex. Henderson. From a judgment for plaintiff, defendant appeals. Dismissed.

F. W. Gifford, for appellant. Meservey, Pierce & German, for respondent.

SMITH, P. J.

The plaintiff has filed a motion to dismiss the appeal, alleging therefor the following grounds, to wit: (1) That abstract of the record filed by the defendant nowhere shows that a bill of exceptions was filed in the cause; and (2) that the abstract fails to show that an order was made granting an appeal in the cause.

An examination of the abstract has failed to disclose an entry in the record proper showing that the bill of exceptions was filed. It is true that in the concluding part of the bill it is stated that the "defendant prays the court to settle and allow his bill of exceptions, and that the same may be signed, sealed, and made a part of the record in the cause, which is done accordingly," but this is no statement that the bill was filed; nor would it help the defendant out of his predicament if it did so state, for it has been repeatedly ruled that such a bill cannot prove itself by the statements made therein. We will restate what we have heretofore so often stated, and that is that no bill of exceptions can be regarded as valid or noticed by us unless the abstract shows an entry on the record proper ordering it to be filed. Westheimer v. McInerny (Mo. App.) 67 S. W. 725; Upton v. Castleman, Id. 707; Albin v. Railway Co., Id. 934; Lumber Co. v. Easton, Id.; Adams v. Machine Co., Schoenberg v. Heyer, and Hill v. Combs, not yet reported; Harmon v. Iden, 88 Mo. App. 314; Goodson v. Bevan, 89 Mo. App. 162; Bates v. Realty Co., 88 Mo. App. 550; Burdick v. Association, 86 Mo. App. 94; Roush v. Cunningham, 163 Mo. 173, 63 S. W. 377; Storage Co. v....