Baird v. George

• Decision Date: 24 April 1888
• Parties: WILLIAM P. BAIRD et al., Appellants, v. JAMES P. GEORGE, Respondent.
• Court: Missouri Court of Appeals

30 Mo.App. 505

WILLIAM P. BAIRD et al., Appellants, v. JAMES P. GEORGE, Respondent.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the Dunklin Circuit Court, HON. JOHN G. WEAR, Judge.

Affirmed.

HENRY N. PHILLIPS, for the appellants: In this case it was agreed between the attorneys for appellants and respondent that the bill of exceptions, though filed out of time, should be the bill of exceptions in this case. It is true that the bill of exceptions in this case was not signed in time, but the same stipulation was made in this case, as in the case of Baird & Waltrip v. Taylor, post, p. 580.

HOUCK & KEATON, for the respondent: There is no bill of exceptions in this case properly; no motion for a new trial nor in arrest of judgment preserved in a bill of exceptions and no error in the record proper. Holloway v. City of Moberly, 18 Mo.App. 553. There is no assignment of error even in brief of counsel for appellants, nor is there any error in this record. Rev. Stat., sec. 3764; Mc Ferran v. McKinney, 18 Mo.App. 649.

OPINION

ROMBAUER P. J.

The record in this cause is in such condition as to present nothing for review. The cause was tried before the court sitting as a jury, on conflicting evidence, and judgment was rendered in favor of defendant. No exceptions to the admission of evidence are saved, and no instructions were asked or given. Judgment was rendered January 8, 1887. The record recites that the motion for new trial was filed on the -- day of March, 1887, although the clerk's endorsement shows it to have been filed June 8, 1887. As motions for new trial must be filed within four days after judgment, the motion thus filed was unwarranted in either event, and the court committed no error in overruling it. The only assignment of error filed in this court is that the verdict is against the weight of evidence.

This statement shows that the only disposition we can make of the appeal is to affirm the judgment. So ordered.

All concur.

PEERS J., delivered the opinion of the court on motion for rehearing.

A motion for rehearing in this case is filed by appellants based on the conduct of one of the attorneys for the respondent. Affidavits both in support of and against the motion are presented to the court, but as the case was decided upon points different from that called to the attention of the court by the motion, we see no good reason why the points raised in the...