City of Mexico v. Barnes

• Decision Date: 30 June 1911
• Parties: CITY OF MEXICO v. BARNES et al.
• Court: Missouri Court of Appeals

138 S.W. 928

158 Mo. A. 612

CITY OF MEXICO v. BARNES et al.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

1. APPEAL AND ERROR (§ 272) — EXCEPTIONS — NECESSITY.

It is only where exceptions have been taken and saved at the term at which the action complained of was had that they can be reviewed on appeal.

2. APPEAL AND ERROR (§ 272) — BILL OF EXCEPTIONS — FILING — EFFECT.

The filing of a bill of exceptions in a cause within the time required by law, or allowed by the court, does not save exceptions to specific rulings, or to the action of the court on motions in the progress of the trial.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Proceeding by the City of Mexico to extend a street. From an order of the Mayor's Court assessing damages to abutting property owners, C. A. Barnes and others appeal to the circuit court where the damages were reduced and costs taxed against the city. A motion to retax having been denied, the city appeals. Affirmed.

A. C. Whitson, for appellant. Fry & Rodgers, C. A. Barnes, and E. S. Gantt, for respondents.

REYNOLDS, P. J.

It appears that the city of Mexico commenced action to extend a street in that city, proceeding under the provisions of sections 5864 and 5869, R. S. 1899, relating to opening and construction of streets in cities of the third class; the matter involved being the assessment of benefits and damages for the extension of the street. The action appears to have been commenced in the Mayor's Court, of that city, where the total damages assessed in favor of all the parties were $1,800. On appeal by the property owners to the circuit court, the damages were assessed at $1,500, and the benefits to the city and public generally at $500, and a judgment appears to have been entered, although that is not set out in the abstract, awarding costs against the city. No motion for a new trial appears to have been interposed by any of the parties in connection with this judgment and no exceptions saved. After the rendition of that judgment the city of Mexico appeared in the circuit court and filed its motion for reduction or retaxation of the costs, asking that they be taxed against certain named defendants. Disallowing a few items, amounting to 60 cents, the circuit court overruled the motion and ordered and adjudged that costs, amounting to $368.40, be taxed against the city of Mexico. Whereupon that city filed an affidavit for appeal which was allowed to this court, the city filing its bill of exceptions in the time provided by order of the court.

We are compelled to hold that there is nothing before us for review. Neither by the record proper nor by the bill of exceptions does it appear that any exception was saved to the action of the circuit court in overruling the motion to retax costs. When the original judgment, which awarded costs against the city was rendered, if it was desired to attack that, exception should have been saved and a motion for a new trial should have been filed...