Case v. Carland

• Decision Date: 30 March 1915
• Docket Number: No. 17228.,17228.
• Parties: CASE et al. v. GARLAND.
• Court: Missouri Supreme Court

175 S.W. 200

264 Mo. 463

CASE et al. v. GARLAND.

No. 17228.

Supreme Court of Missouri, Division No. 2.

March 30, 1915.

Appeal from Circuit Court, Buchanan County; William H. Haynes, Judge.

Action by Samuel J. Case and others against Ella Garland. Judgment for some of the plaintiffs, and defendant appeals. Affirmed.

P. C. Breit and Booher & Williams, all of Savannah, for appellant. Edwin L. Moore of Lamar, for respondents.

WILLIAMS, C.

This is a suit in ejectment to recover the possession of lot 3 in block 30 in the city of Savannah, Mo. Judgment below was in favor of some of the plaintiffs, and defendant has appealed.

Respondents contend that the appellate review must be limited to the record proper. Upon examination, we find that the abstract of the record proper fails to show that a motion for a new trial was filed within four days after the trial. In fact, the abstract of the record proper fails to state that a motion for a new trial was filed at any time. That portion of the abstract known as the bill of exceptions does state that a motion for a new trial was filed. But it has been held by a long line of cases in this state that such a showing is insufficient. Discussing this identical point in the recent case of Dalton v. Register & Co., 248 Mo. 150, 151, 154 S. W. 67, 68, Graves, J., speaking for the court, said:

"These cases are of such long standing and so numerous that the lawyers of the state must abide by them; and so consistent is the ruling that we shall not further restate the rule, other than to state that under these we have held that the abstract of the record proper,. as distinguished from the abstract of the bill of exceptions, must show the filing and overruling of a motion for new trial. And if it does not so show, then we have only the record proper before us for consideration."

Appellant contends that the abstract is sufficient under rule 32 (169 S. W. xi) of this court. But appellant cannot invoke the aid of the above rule in the present case for two reasons, viz.: (1) Rule 32 has to do only with record entries showing the necessary steps in perfecting the appeal such as the filing of an affidavit for an appeal, order granting an appeal, and the record entries concerning the leave to file and the filing of bills of exceptions. It cannot be said that the filing of a motion for a new trial is a necessary step to perfect an appeal because an appeal may be taken even when a motion for new trial has not been filed. And...