Crowell v. Metta

• Decision Date: 11 June 1923
• Docket Number: No. 14764.,14764.
• Citation: 253 S.W. 205,213 Mo. App. 683
• Parties: CROWELL v. METTA.
• Court: Missouri Court of Appeals

253 S.W. 205

213 Mo. App. 683

CROWELL v. METTA.

No. 14764.

Kansas City Court of Appeals. Missouri.

June 11, 1923.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by P. G. Crowell against Daisy Metta. Judgment for plaintiff, and defendant appeals. Affirmed.

Noyes & Heath, of Kansas City, for appellant.

Half, Meservey, German & Michaels, of Kansas City, for respondent.

BLAND, J.

This is an action at law to recover the sum of $721 from defendant, plaintiff's tenant, for rent of a hotel building in Kansas City, Mo. Defendant's answer consists of a general denial and a counterclaim praying for damages in the sum of $2,485. The counterclaim specifies 19 items of damage alleged to have been caused by the condition of the premises rented. Plaintiff's reply was a general denial. The cause was referred to Hon. M. M. Bogie, of the Jackson county bar, whose report recommended that judgment be rendered in favor of the defendant in the sum of $115 as the amount defendant was entitled to recover after deducting the sum of $267, the amount of plaintiff's rent found to be due. The judgment of the court recites that plaintiff's exceptions to the referee's report were sustained and that the report of the referee was modified, and, after setting off the amount of damages the court found that defendant had sustained against the rents found to be due, he rendered judgment in favor of plaintiff in the sum of $285 and defendant has appealed. " "

The following assignments of error are made by the appellant:

"(1) Defendant was entitled to an appeal to the Supreme Court on her constitutional right to a jury trial.

"(2) This was not a proper case for reference to a referee.

"(3) The trial court erred in refusing to render judgment as recommended by the referee."

Passing upon these points, it is necessary for us to refer to the abstract of the record filed by the appellant. Upon examination of this document we find that it contains no bill of exceptions. While what purports to be a number of matters occurring at the trial are printed in connection with the record proper, these matters were matters of exception, and there being no bill of exceptions they cannot be considered by us. The matters alluded to, among others, are the following: The motion for reference; the motions to set aside the order appointing the referee, the rulings of the court thereon and exceptions to the ruling; the abandoned. pleadings in the case; what purports to be the testimony heard by the trial court; plaintiff and defendant's exceptions to the report of the referee, the rulings thereon by the court, and exceptions taken to such rulings; defendant's motion for a new trial; and the stipulation waiving the provision of the statute (section 1441, R. S. 1919) requiring the referee to return to the court the testimony taken. The foregoing matters are matters of exception, and it is well settled that such matters must be preserved in the bill of exceptions. Turley v. Barnes, 131 Mo. 548, 33 S. W. 172; Tuppery v. Hertung, 46 Mo. 135; Tower v. Moore, 52 Mo. 118; Hays v. Foos, 223 Mo. 421, 122 S. W. 1038; Smith v. Baer, 166 Mo. 392, 66 S. W. 166; Dean v. Wabash Rd. Co., 229 Mo. 425, 439, 129 S. W. 953; State ex rel. v. People's Ice Co., 246 Mo. 168, 151 S. W. 101; Kline Cloak & Suit Co. v. Morris (Mo. Sup.) 240 S. W. 96; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638.

We therefore have before us only the record proper, which consists of the amended petition, the answer, and counterclaim and the reply, the court's order directing a reference, the referee's report, the judgment of the court, and the affidavit for an appeal. In none of these do we find any attempt to raise a constitutional point except in the affidavit for an appeal, which reads as follows:

"Now on this day comes defendant and moves the court to allow her an appeal in this cause to the Supreme Court of Missouri, for the reason defendant has been deprived of her constitutional rights of a trial of this case by a jury."

Of course, this general reference to constitutional rights is not sufficient to raise a constitutional point even...