Donnovant v. Rinn

• Decision Date: 21 April 1913
• Citation: 156 S.W. 64,170 Mo. App. 73
• Parties: DONNOVANT et al. v. RINN.
• Court: Missouri Court of Appeals

156 S.W. 64

170 Mo. A. 73

DONNOVANT et al. v. RINN.

Kansas City Court of Appeals. Missouri.

April 21, 1913.

1. APPEAL AND ERROR (§ 581) — RECORD PROPER — MOTIONS FOR NEW TRIAL AND IN ARREST.

The record proper must show that motions for new trial and in arrest of judgment were filed or the rulings thereon are not reviewable, and it is not sufficient that the bill of exceptions states that they were filed.

2. APPEAL AND ERROR (§ 511) — RECORD PROPER — FILING OF BILL OF EXCEPTIONS.

The record proper must show that the bill of exceptions was duly filed or it cannot be considered, and it is not sufficient that the bill states that it was filed.

3. PLEADING (§ 426) — DENIAL OF MOTION TO MAKE MORE DEFINITE AND CERTAIN — OBJECTIONS — WAIVER.

Defendant, who answers after denial of a motion to make the petition more definite and certain, thereby waives the right to complain of the ruling.

Appeal from Circuit Court, Cole County; John M. Williams, Judge.

Action by Lena Donnovant and another against Mary Rinn. From a judgment for plaintiffs, defendant appeals. Affirmed.

Irwin & Peters, of Jefferson City, for appellant. Pope & Lohman, of Jefferson City, for respondents.

ELLISON, J.

Plaintiffs' action is to recover the amount of a reward offered for finding the body of defendant's son, who was drowned in the Missouri river. The judgment in the trial court was for the plaintiffs, and defendant appealed.

The bill of exceptions does not show that an exception was taken to the action of the court in overruling the motions for new trial and in arrest of judgment. More than a year after the appeal was taken, and after plaintiffs had made objection and asked an affirmance of the judgment, defendant asks that she be permitted to amend the abstract by adding thereto that exceptions were, in fact, taken. Plaintiffs object to this leave and point out what they term defendant's neglect in the matter; and, further, they insist that without that objection the judgment must be affirmed on other grounds. We find that the record proper does not show that these motions were ever filed. The bill of exceptions states they were, but that will not suffice. Hays v. Foos, 223 Mo. 421, 122 S. W. 1038; Kolokas v. Railway Co., 223 Mo. 455, 122 S. W. 1082; Wallace v. Libby, 231 Mo. 341, 132 S. W. 665; Keaton v. Weber, 233 Mo. 691, 136 S. W. 342; City of St. Louis v. Henning, 235 Mo. 44, 138 S. W. 5.

Again, the record proper does not state that the bill of exceptions was duly...