Goben v. Quincy, O. & K. C. R. C.

• Decision Date: 10 November 1924
• Docket Number: No. 15106.,15106.
• Parties: GOBEN v. QUINCY, O. & K. C. R. C.
• Court: Missouri Court of Appeals

265 S.W. 850

GOBEN v. QUINCY, O. & K. C. R. C.

No. 15106.

Kansas City Court of Appeals. Missouri.

November 10, 1924.

1. Appeal and error 713(3)—Pleadings not considered as appearing though they were copied into bill of exceptions where omitted from abstract of record.

Where abstract of record failed to show pleadings, and bill of exceptions did not purport to give evidence, there was no way to preserve pleadings in bill of exceptions, and pleadings will not be considered.

2. Appeal and error 590—Abstract of record cannot be corrected after submission of case and after time for filing.

Faulty abstract of record cannot be corrected by appellant after submission of case or suggestion of defect by adverse party if time for filing is past.

3. Appeal and error 701(1)—Evidence not being preserved, contention of conflict in instructions not considered.

Where instructions are set out in bill of exceptions, but evidence is not preserved therein, court cannot consider contention that there was conflict in instructions.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by G. A. Goben against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

See, also, 255 S. W. 327; 206 Mo. App. 5, 226 S. W. 631.

Joseph Park, of La Plata, and A. Doneghy, of Kirksville, for appellant.

J. G. Trimble, of St. Joseph, Franklin & Van Cleve, and John N. Franklin, all of Macon, for respondent.

ARNOLD, J.

This is an action seeking to recover damages for injury to plaintiff's person and automobile, resulting from a collision between said automobile and an engine of defendant railroad company on October 15, 1917, at the intersection of said railroad and Centennial avenue in the city of Kirksville, Adair county, Mo.

The case has been before this court twice. It was instituted originally in the circuit court of Adair county, where it was tried twice, resulting once in a verdict and judgment for defendant, and once in a hung jury. Thereafter, on plaintiff's application, the cause was transferred to Macon county, by change of venue, and was tried twice at La Plata, resulting, first, in a sustained demurrer to plaintiff's evidence, and, second, in a verdict and judgment for defendant. The cause is now before us on appeal of plaintiff from the last judgment.

In its statement, brief, and argument defendant attacks the sufficiency of the abstract of the record. The abstract fails to show the petition or answer, nor are they abstracted therein so as to advise this court of the bases of the action and defense thereto. Copies of the petition and answer are found at pages 4 and 8 of the bill of exceptions. The record proper fails to show pleadings filed, and the bill of exceptions does not purport to give the evidence. There is therefore no way to preserve the pleadings in the bill of exceptions. They were not introduced in evidence, and were not thereby subject to exception. If matters which should be shown in the abstract of the record proper appear only in the bill of exceptions, it is the same as if they did not appear at all. Flanagan Milling Co. v. City of St. Louis, 222 Mo. 306, 121 S. W. 112; Pippert v. Cook (Mo. App.) 203 S. W. 236; Burrus v. Hendricks, 289 Mo. 130, 233 S. W. 181; Rund Mfg. Co. v. Laederich (Mo. App.) 214 S. W. 239; Steers v. Mining Co. (Mo. App.) 209 S. W. 115. It was held in Ford v. Brokerage Co. (Mo. Sup.) 197...