Butler County v. Graddy

• Court: Missouri Supreme Court
• Writing for the Court: Robinson
• Citation: Butler County v. Graddy, 152 Mo. 441, 54 S.W. 219 (Mo. 1899)
• Decision Date: 05 December 1899
• Parties: BUTLER COUNTY v. GRADDY et al.

54 S.W. 219

152 Mo. 441

BUTLER COUNTY v. GRADDY et al.

Supreme Court of Missouri.

December 5, 1899.

APPEAL—RECORD—ABSTRACT—BILL OF EXCEPTIONS.

Under Rev. St. 1889, § 2253, providing for appeal by filing certified copy of judgment and order granting appeal, and requiring an appellant to file a transcript of the record, or in lieu thereof a certified copy of the record entry of the judgment appealed from, and a printed abstract of the entire record, an appeal will be dismissed where appellant relies on an abstract which fails to show that any bill of exceptions was ever filed.

In banc. Appeal from circuit court, Butler county.

Action by Butler county against W. C. Graddy and others. Judgment for defendants, and plaintiff appeals. Dismissed.

W. E. Renfro, R. H. Stanley, and E. R. Lentz, for appellant. Louis F. Dinning and H. W. Hamel, for respondents.

ROBINSON, J.

This is an action commenced by Butler county against W. C. Graddy, former treasurer of said county, and the other defendants as securities on his official bond as treasurer of said county, to recover $24,000, the penalty of said bond. This action is based on the conduct of Graddy in paying certain warrants upon several funds which it is alleged had been improperly transferred by the county court of Butler county. It is contended by counsel for plaintiff that under section 844, Rev. St. 1889, the county court, under the circumstances of this case, was powerless to make such transfer. The answer is a general denial, coupled with a plea of the three-years statute of limitations in bar of the action. The defendants also set up the order of the county court transferring the fund in question, and Graddy's settlements with the county court, as adjudications of the matters involved in the case. The reply denied generally the new matter contained in the answer. There was a trial by jury. At the conclusion of the plaintiff's evidence the circuit court, by an instruction in the nature of a demurrer to the evidence, directed a verdict for defendants.

The appeal in this case was taken under section 2253, Rev. St. 1889, by filing in this court a certified copy of the judgment and the order granting the appeal. By that section it is provided that "the appellant or plaintiff in error shall cause to be filed in the office of the proper appellate court in case of appeal * * * a proper transcript of the record and proceedings in the case, or in lieu of such transcript, a certified copy of the record entry of the judgment order or decree appealed from in said case, showing the term, the day of the term and the year upon which same shall have been rendered together with the order granting the appeal, and shall thereafter within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court, file printed abstract of the entire record of said cause in the office of the clerk of such appellate court," etc. The plaintiff's counsel, however, instead of filing a printed abstract, in conformity with this section, and rule 11 of this court,...