Flanagan Milling Co. v. City of St. Louis

• Decision Date: 01 July 1909
• Citation: 121 S.W. 112,222 Mo. 306
• Parties: FLANAGAN MILLING CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

121 S.W. 112

222 Mo. 306

FLANAGAN MILLING CO. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

Rehearing Denied July 12, 1909.

1. APPEAL AND ERROR (§ 586) — ABSTRACT OF RECORD — SUFFICIENCY.

An abstract of record is fatally defective, where it nowhere appears at what term of the court, if any, the motion for a new trial was filed or overruled, or the affidavit for an appeal was filed and the appeal granted, or at what term an order was entered granting leave to file a bill of exceptions, or whether those things were done in term time at all.

2. EXCEPTIONS, BILL OF (§ 6) — FUNCTION OF BILL — RECORD ENTRIES.

Record entries, as such, cannot be preserved in a bill of exceptions, as that is not its function.

3. APPEAL AND ERROR (§ 631) — ABSTRACTS — PRINTING.

The Supreme Court will not go to a manuscript full transcript for those things essential to perfect an appeal and giving jurisdiction, nor for matter essential to an understanding of the points to be decided; but under the rules they must be abstracted in "print."

4. APPEAL AND ERROR (§ 586) — ABSTRACTS — REQUISITES AND SUFFICIENCY.

In condensed form, an abstract should still preserve and evidence essential facts.

Appeal from Circuit Court, St. Charles County; Jas. D. Barnett, Judge.

Action by the Flanagan Milling Company against the City of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

Alfred A. Paxson, Hamilton Grover, and T. F. McDearmon, for appellant. Charles W. Bates and Charles P. Williams, for respondent.

LAMM, P. J.

Plaintiff corporation was "tenant and owner" of certain lots and a certain hominy mill and elevator situate thereon in St. Louis. Close by was a public sewer in Geyer avenue constructed in 1854. Plaintiff's basement was connected with this sewer by drain pipes. In that basement were sundry sorts of milling machinery, also grains and manufactured "white corn goods," meal, etc. On July 24, 1899, as the result of a heavy rainfall, the backwater from the Geyer avenue sewer flooded said basement, damaging its contents and the mill building. Grounding its action on negligence in enlarging the area drained by the Geyer avenue sewer district beyond the capacity of the sewer and in allowing the sewer to become obstructed by dirt and debris, whereby sewerage and flood water were dammed back into the basement, plaintiff sued for $25,000 damages. Defendant answered: First, by way of a general denial; second, by way of a plea of contributory negligence, in that defendant had charter power to regulate the use of sewers by ordinance and had passed certain ordinances by virtue of such power requiring owners of premises to put in self-acting valves in all cases where a back flow from main sewers may be apprehended, coupled with an allegation that such safety valve would have been a complete barrier to the back flow complained of in the petition; that there was in existence a self-acting valve known as a "back trap" or "backwater trap" effective to stop sewer back flow, a simple device of small cost and installed with little trouble; and that plaintiff negligently violated said ordinance and negligently failed to install such device to prevent back flow and injury therefrom. Unsuccessful below, plaintiff brings the case here.

The abstract sets forth the petition, answer, and reply in full; next, that the cause went on a change of venue to the St. Charles circuit court; next, follows certain proceedings which the abstract states "are preserved in the bill of exceptions." An abstract of the bill of exceptions next follows covering 55 pages, and winding up with the signature of the trial judge and the file marks of the clerk. Following said abstract of the bill of exceptions in matter which we present totidem verbis, reading: "Record Entries, March 10, 1905, verdict and judgment for defendant. March 13, 1905, motion for new trial filed. March 24, 1905, motion for new trial overruled. March 24, 1905, affidavit and motion...