Arnold v. Boyer

• Decision Date: 22 February 1892
• Citation: 18 S.W. 913,108 Mo. 310
• Parties: ARNOLD et al. v. BOYER.
• Court: Missouri Supreme Court

18 S.W. 913

108 Mo. 310

ARNOLD et al. v. BOYER.

Supreme Court of Missouri, Division No. 1.

February 22, 1892.

MOTION FOR NEW TRIAL — RECORD ON APPEAL.

A motion for new trial not being incorporated in the bill of exceptions, and Act March 31, 1885, dispensing with such incorporation, provided the bill of exceptions filed contains a direction to the clerk to copy the same, and the same is so copied into the record sent to the appellate court, not being complied with, the subject cannot be considered on appeal.

Appeal from circuit court, Scotland county; BEN. E. TURNER, Judge.

Ejectment by Jacob Arnold and others against George Boyer. Judgment for defendant, and plaintiffs appeal. Affirmed.

Mudd & Wagner and Smoot & Pettingill, for appellants. McKee & Jayne, (D. H. McIntyre, of counsel,) for respondent.

SHERWOOD, C. J.

Ejectment for land in Scotland county. There is no error in the record proper, and the point is made by respondent that the motion for a new trial is not incorporated in the bill of exceptions, and therefore not preserved so as to be noticed by this court. The amendatory section of March 31, 1885, so far changed the old rule of practice in this court that the incorporation of such motions is no longer necessary, "provided the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same is so copied into the record sent up to the appellate court." Compliance with this amendatory section has not occurred in this case, so that this objection is well taken, whether the old or the new statutory rule be followed, — a rule which prevails alike in civil and criminal cases. State v. Griffin, 98 Mo. 672, 12 S. W. Rep. 358, and cases cited. The premises result in an affirmance of the judgment.

All concur, but BARCLAY, J., absent.