Phillips v. Jones

• Decision Date: 30 June 1903
• Citation: 75 S.W. 920,176 Mo. 328
• Parties: PHILLIPS et al., Appellants, v. JONES et al
• Court: Missouri Supreme Court

75 S.W. 920

176 Mo. 328

PHILLIPS et al., Appellants, v. JONES et al

Supreme Court of Missouri, Second Division

June 30, 1903

Appeal from Lawrence Circuit Court. -- Hon. H. C. Pepper, Judge.

Affirmed.

J. W Farris and R. S. Phillips for appellants.

J. L Newhouse for respondents.

OPINION

GANTT P. J.

This is an appeal from the circuit court of Lawrence county. The action is ejectment for certain lands in Laclede county. It was originally brought in Laclede county and a change of venue awarded to Lawrence county.

The judgment was for defendants and plaintiffs appeal. A jury was waived and the cause was tried to the court. No errors are assigned on the record proper. The only point assigned in brief and argument of counsel are the insufficiency of the evidence to sustain the judgment, and the admission of evidence.

There is no motion for a new trial incorporated in the bill of exceptions, and as error in the admission and rejection of evidence can only be made to appear in a bill of exceptions, and as such errors can only be reviewed in this court after the attention of the circuit court has been called to them in a motion for new trial, it is plain that there is nothing before us for review. It is true that in the transcript a motion for new trial is copied into the record proper by the clerk but the preservation of these motions is the special and exclusive office of the bill of exceptions. They can be preserved nowhere else. No recital in the record proper will have any such effect.

In Nichols v. Stevens, 123 Mo. loc. cit. 119, it was ruled that, "A recitation in the record of matters not properly belonging thereto can not be noticed in an appellate court. Matters which are not in fact a part of the record can not be made such by the mere recital of the clerk." Citing Parkinson v. People, 24 N.E. 772; Gould v. Howe, 127 Ill. 251. [Ryan v. Growney, 125 Mo. 474, 19 N.E. 714; State v. Revely, 145 Mo. 660; State v. Burdett, 145 Mo. 674, 47 S.W. 796; State v. Gilmore, 110 Mo. 1, 19 S.W. 218.]

This court in a long line of decisions has held that it will not consider objections to the action of the circuit courts which were not brought to the attention of the circuit court by a motion for a new trial. [Ross v. Railroad, 141 Mo. 390; Matlock v. Williams, 59 Mo. 105; State v. Harvey, 105 Mo. 316, 16 S.W. 886.]

We have then before us nothing but a copy of the evidence taken on the trial.

The alleged errors on which the appellant relies were...