Cuomo v. The City of St. Joseph

• Decision Date: 08 February 1887
• Citation: 24 Mo.App. 567
• Parties: ELIZA CUOMO AND HER HUSBAND, Respondents, v. THE CITY OF ST. JOSEPH, Appellant.
• Court: Kansas Court of Appeals

24 Mo.App. 567

ELIZA CUOMO AND HER HUSBAND, Respondents, v. THE CITY OF ST. JOSEPH, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1887

APPEAL from Buchanan Circuit Court, HON. S. P. HUSTON, Special Judge.

Affirmed.

Statement of case by the court.

The appellant filed, in this court, an abstract of the record containing the pleadings, the evidence, and the instructions and a brief in connection therewith, setting up the action of the trial court during the trial, in various respects, as made to appear by said abstract of the record, as error. A copy of the abstract of the record and brief was duly delivered to the attorney of respondents, in compliance with rule fifteen of this court. And the respondents thereupon prepared, delivered a copy thereof to the attorney of the appellant, and filed in this court a brief and further abstract of the record. From said additional abstract it is made to appear that an appeal was allowed in this case on October 29, 1885, and that the appellant was granted leave to file a bill of exceptions on the first day of the next January term of the circuit court, and that the bill of exceptions was filed on the fortieth day of said January term.

In reply the appellant set out certain record entries, not contained or referred to in its original abstract of record concerning the organization of the court, viz: the selection of a special judge in this case and the empanelling of a jury, from which entries, it appears, it is argued by appellant, that the special judge had no authority to act and that the jury were not sworn. And for this reason the appellant asks that the judgment be reversed.

JAMES LIMBOID, city counselor, for the appellant.

GREEN & BURNES, for the respondents.

I. There being no bill of exceptions filed in time allowed by the court, the record proper is all that can be considered by this court. Holloway v. Moberly, 18 Mo.App. 553; Eau Claire Co. v. Howard, 76 Mo. 517.

II. The petition in the cause being sufficient, there is no error in the record. Mack v. St. Louis Railway Co., 77 Mo. 232; Otto v. St. Louis Railway Co., 12 Mo.App. 168; Black on Proof and Pleading, sect. 141.

HALL J.

The bill of exceptions was not filed within the time prescribed by the order of the circuit court, granting the appellant leave to file it after the expiration of the term of the court at which the appeal was taken, and hence said bill of exceptions is, in contemplation of law, no bill of exceptions. Rev. Stat., sect. 3656; Holloway v. City of Moberly, 18 Mo.App. 553, and cases cited; Dale v. Patterson, 63 Mo. 98; Baker v. Loring, 65 Mo. 527; West v. Fowler, 59 Mo. 40; S. C., 55 Mo. 300.

The record, therefore, does not contain any exceptions taken to the action of the court during the trial, and so far as concerns the trial there is nothing for us to review.

As to the organization of the trial court in the following respects, viz: the selection of a special judge and the empanelling of a jury, the abstract of the record filed by the appellant contained not a word. From said abstract of the record we are totally unable to understand anything concerning said organization of the court. By rule...