Haibe v. Walsh

• Decision Date: 02 March 1931
• Parties: ORA F. HAIBE, RESPONDENT, v. THOMAS E. WALSH, APPELLANT
• Court: Kansas Court of Appeals

38 S.W.2d 523

225 Mo.App. 770

ORA F. HAIBE, RESPONDENT, v. THOMAS E. WALSH, APPELLANT

Court of Appeals of Missouri, Kansas City

March 2, 1931

Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.

AFFIRMED.

Judgment affirmed.

Charles P. Woodbury and Charles A. Stratton for respondent.

Elmer B. Hodges for appellant.

BOYER C. Campbell, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

This proceeding arose upon the petition and motion of respondent filed in the circuit court of Jackson county to quash an execution issued by the clerk of said court based upon a transcript of a judgment of a justice of the peace of Kaw Township in Jackson County, filed in the office of said clerk, and to quash the record of the transcript of said judgment and to declare the judgment and the record thereof void. The court found for the petitioner and entered judgment accordingly, from which said judgment an appeal has been made to this court. The errors assigned by appellant and the points presented in the brief are based upon the idea that the judgment so rendered by the circuit court was against the law under the evidence, and upon other alleged procedural errors all of which are said to appear and to be shown by matters contained in the bill of exceptions.

We have examined with care the abstract of the record presented in this case and have reached the conclusion that we are precluded from a consideration of matters arising upon exception for the reason that the abstract so tendered fails to show any properly identified bill of exceptions in the case. The abstract, under the title of Record Entries contains a copy of the petition, a recital that "the court entered its judgment in favor of plaintiff and against defendant" on the 15th day of October, 1929, and also a recital of the filing of a motion for new trial and a motion in arrest of judgment which were overruled October 29, 1929, to which action defendant excepted. Then follows this recital: "Thereafter an appeal was duly taken by the defendant to this court and same was duly perfected. And thereafter, the bill of exceptions was approved and duly filed." Without any further showing of record entries and without any other recital whatever, and without the title of the case and without any identification whatever of the bill of exceptions which was filed, the abstract next contains the title or headline "Bill of Exceptions." Thereafter it is recited that the cause came on for hearing September 25, 1929. There is then set forth what purports to be the evidence offered by plaintiff and by defendant, at the close of which appears the judgment of the court in full under date of October 15, 1929. Motions for new trial and in arrest are set forth and a recital that they were overruled on October 29, 1929. Then follows a recital that on October 30, 1929, "further proceedings were had." Then follows what appears to be additional evidence, at the close of which appear certain statements of court and counsel, and following this is the certificate of the attorney for defendant "that the foregoing is a correct abbreviated statement of the contents of the bill of exceptions in this cause." There is no other or further information in reference to the validity or identity of the purported bill of exceptions. There is no showing that the foregoing was tendered as the bill of exceptions in the case and that the court was requested to allow, sign, and file same and order that it be made a part of the record, and no showing that the purported bill was so allowed and signed and ordered made a part of the record by the judge of the court.

Rule 26 of this court provides in part:

"Hereafter no appellant need abstract record entries evidencing his leave to file, or filing of, a bill of exceptions. It shall be sufficient if his abstract state the bill of exceptions was duly filed."

The recital in appellant's abstract that the bill of exceptions was duly filed is sufficient to dispense with the necessity of abstracting the record entries showing that a bill was filed. It does not dispense with the necessity of identifying that which purports to be a bill of exceptions in the abstract as the bill which was in fact filed and allowed by the court and ordered made a part of the record. It will be noted that the abstract preceding the purported bill does not evidence the fact that the bill of exceptions so filed is the bill printed in the abstract. It will also be observed that the purported bill of exceptions does not conclude in the usual manner by a showing that the foregoing was tendered as the bill of exceptions; that the court was requested to sign and allow same and order it...