Gilchrist v. Bryant

• Decision Date: 03 July 1908
• Citation: 213 Mo. 442,111 S.W. 1128
• Parties: GILCHRIST v. BRYANT.
• Court: Missouri Supreme Court

111 S.W. 1128

213 Mo. 442

GILCHRIST v. BRYANT.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. APPEAL AND ERROR — ABSTRACTS—INDEX— ABSENCE—EFFECT.

The absence of an index from an abstract on appeal, where the abstract contains only five pages and is printed in fair type, does not render the abstract imperfect, under the court rule requiring the abstract to be indexed.

2. SAME — SUFFICIENCY — SHOWING EXCEPTIONS —BILL OF EXCEPTIONS.

Under Rev. St. 1899, § 864 (Ann. St. 1906, p. 808), forbidding the appellate court to consider any exceptions, except such as shall be expressly decided by the trial court, where on appeal the abstract does not show that the bill of exceptions shows the exceptions taken at the trial, the court will consider the case as if no bill of exceptions was filed.

Appeal from Circuit Court, Mississippi County; H. C. Riley, Judge.

Action by W. A. Gilchrist against John R. Bryant to quiet title to land. From a judgment for plaintiff, defendant appeals. Affirmed.

H. C. O'Bryan and Boone & Lee, for appellant. Russell & Deal, for respondent.

LAMM, J.

This is a suit under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to ascertain and determine the estate, title, and interest of plaintiff and defendant, respectively, in the S. ½ of the S. W. ¼ of section 31, township 23, range 17, in Mississippi county, Mo., and to define and adjudge the title, estate, and interest of said parties severally in and to such real property. Plaintiff, wanting his title quieted and settled, brought suit, alleging in his petition that he was the owner of the land in "fee simple absolute," and averring that "defendant claims to have title to an interest in the land and real estate which is adverse, hostile, and injurious to plaintiff." To the foregoing petition, defendant answered by a general denial; i.e., he denied (inter alia) the allegation that he claimed title to or any interest in the land adverse, hostile, or injurious to plaintiff. The judgment was in favor of plaintiff, and defendant appeals.

1. It is argued the abstract is imperfect, in that it does not comply with our rule requiring an index. But as it is only five pages, all told, and is printed in fair type, an index would only impose an additional labor on the court in using it to examine the abstract. There being no office for it to fill, it could fill none. The rule ends with the reason of it, and trifles concern not the law. The point is ruled against plaintiff.

2. The abstract shows a bill of exceptions was signed, allowed, and filed; but it does not show a single thing identified as set forth in the bill of exceptions. There is no bit of testimony, or any exception, or one ruling said to be contained and preserved therein...