Fast v. Gray

• Decision Date: 15 February 1904
• Citation: 78 S.W. 1048,105 Mo. App. 694
• Parties: FAST v. GRAY et al.
• Court: Missouri Court of Appeals

78 S.W. 1048

105 Mo. App. 694

FAST v. GRAY et al.

Court of Appeals at Kansas City, Missouri.

February 15, 1904.

APPEAL — RECORD — NEW TRIAL — DENIAL — BILL OF EXCEPTIONS — FILING.

1. Where the abstract of the record entries made by the clerk contained in an appeal record failed to show the filing and overruling of a motion for a new trial, only errors apparent on the face of the record proper could be reviewed, notwithstanding a recital of the filing and overruling of such motion in a purported bill of exceptions.

2. Where there was no entry or minute of the clerk of the trial court showing that the bill of exceptions was ever filed, such bill could not be considered on appeal.

Appeal from Circuit Court, Pettis County; Geo. F. Longan, Judge.

Action by Jennie B. Fast, as administratrix, etc., against Ira O. Gray and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

John Cashman, for appellants. Barnett & Barnett and Bruce Barnett, for respondent.

SMITH, P. J.

This is an action that was begun before a justice of the peace, and from there it was removed by appeal to the circuit court, where the plaintiff had judgment, and the defendants appealed here. The plaintiff has raised the objection that the record before us does not show that a motion for a new trial was filed in the trial court within the time required by the statute, nor overruled by that court. The case was brought here by what is commonly known as the "short method," authorized by section 813, Rev. St. 1899. It is true that that which purports to be a bill of exceptions does recite the filing and overruling of the motion, but the abstract of the record entries made by the clerk fails to show the filing and subsequent overruling of such motion. This omission is not supplied by any epitome contained in any part of the abstract or the statement. It is well settled in this state that, unless the record proper affirmatively shows that the motion was filed within the time required by the statute, no matter of exception can be reviewed, but only such errors as are apparent upon the face of the record proper. Hill v. Combs, 92 Mo. App. 242; McCormick v. Crawford, 98 Mo. App. 323, 72 S. W. 491; Bates v. Ruth, 88 Mo. App. 550; St. Louis v. Boyce, 130 Mo. 572, 31 S. W. 594; Danforth v. Ry. Co., 123 Mo. 198, 27 S. W. 715, and cases there cited. Besides this, there is another objection equally fatal to that just noticed, which is that there is nothing outside of the...