Bailey v. Nichols

• Decision Date: 02 April 1934
• Docket Number: No. 18011.,18011.
• Citation: 70 S.W.2d 1103
• Parties: BAILEY v. NICHOLS et al.
• Court: Missouri Court of Appeals

70 S.W.2d 1103

BAILEY v. NICHOLS et al.

No. 18011.

Kansas City Court of Appeals. Missouri.

April 2, 1934.

Rehearing Denied April 30, 1934.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be published in State Reports."

Action by Allen Bailey against Charles L. Nichols and others. From the judgment rendered, the plaintiff appeals. On motion to dismiss the appeal.

Appeal dismissed.

John V. Goodson, of Macon, for appellant.

E. M. Jayne, of Kirksville, for respondents.

TRIMBLE, Judge.

Respondents' motion to dismiss appeal is a matter calling for disposition first. The motion is based upon alleged defects and consequent insufficiency in appellant's abstract, and it sets up at least nine grounds upon which dismissal of the appeal is asked.

As to some of these, the abstract is not open to the charges they make, since it, although somewhat inartistic in form, does, in effect, contain the things here referred to, which the motion erroneously says it did not contain.

Other grounds relate to matters that are not contained in the abstract, but they are shown in the "Short Form Transcript" certified to us by the clerk, and we have a right to go to it for such as are shown therein. State ex rel. v. Little River Drainage District, 271 Mo. 429, 196 S. W. 1115; Tunnicliff v. Watts (Mo. Sup.) 210 S. W. 876.

But respondents' motion does contain objections to which the abstract is clearly vulnerable, and there is nothing in the "Certified Short Form Transcript" to cure them, since nothing is said therein about them. For instance, the abstract commingles matter which should be shown in the abstract of the record proper with matter that should be shown only in the bill of exceptions, so that the two cannot be distinguished. In such case the appellate court will confine itself to the record proper. Ford v. Thayer-Moore Brokerage Co. (Mo. Sup.) 197 S. W. 339. But here there is nothing to distinguish what is matter for the record proper from what is matter for a bill of exceptions. In fact, judging from the way the abstract is printed and the wording of the certificate appended thereto, together with a recital in the abstract, in what is doubtless intended to be in the bill of exceptions and not in the record proper (we have no certain means of knowing which, except that, from the subject-matter of the recitals themselves, we would guess are, or should be, in the bill of exceptions), the whole printed abstract is offered as "a true, complete and substantial history of the cause and bill of exceptions presented to and signed by the court" and that "plaintiff by counsel * * * presents and tenders the within and foregoing record (manifestly that which is now the entire printed abstract) as its true, correct record and...