Anderson v. R. V. Sew and Grain Co.

• Decision Date: 02 December 1918
• Docket Number: No. 12993.,12993.
• Citation: 208 S.W. 632
• Parties: ANDERSON v. R. V. SEWARD GRAIN CO.
• Court: Missouri Court of Appeals

208 S.W. 632

ANDERSON v. R. V. SEWARD GRAIN CO.

No. 12993.

Kansas City Court of Appeals, Missouri.

December 2, 1918.

Appeal from Circuit Court, Clinton County; Alonzo D. Burns, Judge.

"Not to be officially published."

Action by John F. Anderson against the R. V. Seward Grain Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Lavelock & Kirkpatrick, of Richmond, for appellant.

F. B. Ellis, of Plattsburg, for respondent.

ELLISON, P. J.

This action was instituted in the circuit court to recover a balance alleged to be due on an account. The judgment was for the plaintiff.

There is no motion for new trial preserved. A paper purporting to be such motion is set out in the abstract of the record proper. But it has been ruled time and again that that is not the place for it. It belongs in the bill of exceptions. In the bill preserved in the abstract presented here no motion is set out. Instead, we find a statement that one was filed, and that "it will be found on page 0 of this abstract." That page is a part of the record proper. Under the statute (section 2083, R. S. 1909), it is necessary to copy the motion bodily into the bill of exceptions, unless the bill calls for the motion and directs the clerk to copy it; in which case it will be sufficient if the motion is copied into the record sent up to the appellate court. State ex inf. v. Morgan, 268 Mo. 265, 270, 187 S. W. 54, in which will be found a number of like cases. We decided the same thing in Wank v. Peet, 190 S. W. 88, a case precisely like the one under consideration. That case was afterwards thoroughly examined by the Supreme Court and the authorities fully discussed, resulting in approval of the view taken by us. State ex rel. v. Ellison, 196 S. W. 1103.

The cases cited by defendant like that of Cental Bank v. Lyda, 191 S. W. 245, 249, and Hendricks v. Calloway, 211 Mo. 536, 556, 111 S. W. 60, are not in point, since the bill of exceptions therein called for the motion to be inserted by the clerk. The result is that no alleged error which would be matter of exception is open for review.

We find no error in the record proper, justifying a reversal. The petition undoubtedly states a cause of action. It does, however, appear that plaintiff only asked judgment for $94.20; whereas, by inadvertence, the verdict and judgment was for $94.50. This excess of 30 cents, in accordance with statement of plaintiff's counsel at the argument; will be remitted, and the judgment...