Floyd v. Modern Woodmen of America

• Decision Date: 03 April 1911
• Citation: 137 S.W. 12
• Parties: FLOYD v. MODERN WOODMEN OF AMERICA.
• Court: Missouri Court of Appeals

137 S.W. 12

FLOYD v. MODERN WOODMEN OF AMERICA.

Kansas City Court of Appeals. Missouri.

April 3, 1911.

On Motion for Rehearing, May 15, 1911.

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

An abstract of record, reciting the return of a verdict and subsequently the filing of a motion for new trial, without stating whether the motion was filed during the same term, does not show that the motion for a new trial was filed during the term, and there is no matter of exception reviewable on appeal.

2. APPEAL AND ERROR (§ 590)—RECORD—SUPPLEMENTAL RECORD.

Where the original abstract of record does not show the filing of a motion for new trial during the term at which the verdict was rendered, the court, after respondent has taken exception to the abstract, cannot grant leave to file a supplemental abstract setting out a proper record.

On Motion for Rehearing.

3. APPEAL AND ERROR (§ 581)—ABSTRACT OF RECORD—DEFECTS.

An abstract of record which does not show that there were any pleadings in the case, either petition, answer, or reply, or amendments thereof, is fatally defective.

4. APPEAL AND ERROR (§ 581)—ABSTRACT OF RECORD—DEFECTS.

An abstract of record which does not show that the action was tried at a term of court is fatally defective.

5. APPEAL AND ERROR (§ 639)—ABSTRACT OF RECORD—DEFECTS.

The defects in an abstract of record arising from its failure to show that there were any pleadings in the case, and that the action was tried at a term of court, are not cured by a recital, aided by inferences and deductions of facts of which the court can take judicial notice, that the motion for new trial was filed during the term at which the verdict was rendered.

6. APPEAL AND ERROR (§ 581)—ABSTRACT OF RECORD—ORDER GRANTING APPEAL.

An abstract of record must show that the order granting the appeal was made of record.

7. APPEAL AND ERROR (§ 639)—ABSTRACT OF RECORD—ORDER GRANTING APPEAL.

The defects in an abstract of record, failing to recite the existence of an order extending the time of the filing of a bill of exceptions, are not cured by a recital properly stating that a subsequent extension was made by an order entered of record.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Nannie Floyd against the Modern Woodmen of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Benj. D. Smith and Bailey & Hart, for appellant. Campbell & Ellison and Weatherby & Frank, for respondent.

PER CURIAM.

Plaintiff is the beneficiary in a certificate of life insurance issued to her deceased husband in his lifetime, and she brought this action to recover judgment for the amount thereof, and prevailed in the trial court, whereupon defendant appealed.

Defendant assigns many errors in its brief claimed to have been committed by the trial court. But as it does not appear that a motion for new trial was filed during the term at which the verdict was returned, we have no matter of exception before us, and have only to consider whether there is any error in the record proper; that is, whether the record proper sustains the judgment. Harding v. Bedoll, 202 Mo. 625, 632, 100 S. W. 638. The abstract recites the return of the verdict and that afterwards, on May 18, 1910, a motion for new trial was filed. But it is not stated whether this was during the same term. The case just cited is precisely in point.

Passing by other defects in the abstract, as stated by plaintiff, we note that defendant has asked leave to file a supplemental abstract, setting out what is claimed to be a proper record. This leave was asked after plaintiff had taken exception to the abstract, and under frequent rulings of the Supreme Court and this court it cannot be granted. Everett v. Butler, 192 Mo. 564, 91 S. W....