Commercial Trust & Savings Bank v. Magee

• Decision Date: 20 May 1907
• Court: Missouri Court of Appeals
• Parties: COMMERCIAL TRUST & SAVINGS BANK v. MAGEE et al.

102 S.W. 600

125 Mo. A. 439

COMMERCIAL TRUST & SAVINGS BANK v. MAGEE et al.

Kansas City Court of Appeals. Missouri.

May 20, 1907.

1. APPEAL — MATTERS TO BE SHOWN BY RECORD — TAKING OF APPEAL.

A recital in a bill of exceptions that an appeal was taken does not evidence that fact. It must appear from the abstract of the record proper.

2. SAME — MOTIONS FOR NEW TRIAL AND IN ARREST OF JUDGMENT.

It is not sufficient to show in the bill of exceptions that a motion for a new trial or in arrest of judgment was filed. Those facts must be shown in the abstract of record.

Appeal from Circuit Court, Carroll County; Jno. P. Butler, Judge.

Action by the Commercial Trust & Savings Bank against George H. Magee and others. From a judgment for plaintiff, defendant Herman G. Cherry appeals. Affirmed.

James R. Page and Jones & Conkling, for appellant. Lozier, Morris & Atwood and Karnes, New & Krauthoff, for respondent.

BROADDUS, P. J.

The respondent makes the point that this cause should be affirmed for the reason that the appellant's abstract does not show that an appeal was granted. A recital in a bill of exceptions of the fact that an appeal was taken does not evidence that fact. It must appear from the abstract of the record proper. Greenwood v. Parlin & Orendorff Co., 98 Mo. App. 407, 72 S. W. 138; Jordan v. Railway Co., 92 Mo. App. 81. And, furthermore, the abstract of record does not show that any motion for new trial or in arrest of judgment was filed. Such matters should also be shown dehors the bill of exceptions. Greenwood v. Parlin & Orendorff Co., supra; Jordan v. Railway Co., supra.

There being no error shown by the record, the cause is affirmed. All concur.