Harding v. Bedoll

Decision Date22 February 1907
PartiesHARDING v. BEDOLL et al.
CourtMissouri Supreme Court

Action by Mary Harding against Philip Bedoll and others. Judgment for plaintiff, and defendants bring error. Dismissed.

Geo. Bullock, for plaintiffs in error. Dinning & Dinning, for defendant in error.

GRAVES, J.

With the view we have of this case a short statement will suffice. Action by plaintiff against defendants in ejectment. Defendants Bedolls, answer by general denial; defendant Allen, by general denial, and a plea of adverse possession for 10 years. Replication, a plea of former adjudication of Allen's alleged title of adverse possession, in a former action, the details of which would be useless here. Plaintiff had judgment in the lower court—the circuit court of Butler county—and within the year defendants sued out their writ of error here. Defendants, now plaintiffs in error, have filed what they call an abstract of record. They likewise filed brief and argument in which the merits of the case are fully discussed. Plaintiff, now defendant in error, urges the insufficiency of this abstract of record filed herein. The insufficiency of the abstract is thus challenged in the following assignments: "For the reason that said abstract does not contain a copy of the order of the circuit court of Butler county, filing plaintiffs in error's motion for a new trial. Because said abstract does not contain a copy of the record of the circuit court of Butler county, overruling plaintiffs in error's motion for a new trial. Because said abstract does not contain a copy of an order of the circuit court of Butler county, filing plaintiffs in error's motion in arrest of judgment. Because said abstract does not contain an order of the circuit court of Butler county, overruling plaintiffs in error's motion in arrest of judgment. Because said abstract does not show on page 32 thereof that the circuit court of Butler county, Mo., did render a judgment in favor of this defendant in error and against the plaintiffs in error for the possession of the land in question, with one cent damages, and monthly rents fixed at $2.50, and an execution ordered to place plaintiff in possession of the premises. Because said abstract does not show that plaintiffs in error ever had a bill of exceptions signed by the judge of the circuit court, who tried this cause, nor does said abstract show an order of the circuit court filing a bill of exceptions in this case."

Defendant in error files an elaborate brief upon the question of the insufficiency of the abstract. After the service of this brief by defendant in error, plaintiffs in error, two days before the argument of the case, serve and file what is denominated "Supplemental abstract and reply brief of plaintiffs in error." As to the motion for new trial, this additional abstract says: "Within four days after the rendition of said judgment, to wit, on the 12th day of June, 1903, plaintiffs in error filed their motion for a new trial, which has endorsed thereon the following: `Filed June 12, 1903, L. M. Henderson, circuit clerk.'" Said motion for new trial coming on for hearing, the following entry appears of record on the motion docket of the circuit court of Butler county, at page 58:

                                                                 Character of
                Attorneys.         Case No.     Parties.           Motion.         Date
                ----------------|----------|--------------------|--------------|-----------
                L. F. Dinning.  |          |  Mary Harding      |              |
                                |          |                    |  Motion in   |  Overruled
                Henry W. Allen  |  No. 52  |      vs.           |              |
                 and Geo.       |          |                    |              |
                 Bullock.       |          |Phillip Bedoll et al|   Arrest     |   6-19-03
                ---------------------------------------------------------------------------
                

A similar showing is made as to the motion in arrest of judgment. The final entry as to the alleged filing of a bill of exceptions in the case is in this language: "At page 324 of said miscellaneous record, appears the following entry: `Mary Harding v. Philip Bedoll et al., No. 52. Now on this, the 25th day of January, 1904, comes Geo. Bullock, attorney for the defendants herein, and files his bill of exceptions, in the above-entitled cause.'" In the instrument first filed as an abstract of record it nowhere mentions the filing of a bill of exceptions. In fact the words "bill of exceptions" nowhere appears in the document. This sufficiently outlines the situation for a proper consideration of the contention made that the writ of error should be dismissed or the judgment affirmed on account of the failure to file such an abstract of record as required by the rules of this court promulgated under the statutes.

The question of what is a proper abstract of the record is becoming so frequent of late that an excuse is furnished for this opinion, taking up in detail the delinquencies charged to this abstract. The rules of the court were established for the speedy and orderly disposition of its work. They are reasonable, and, if examined by counsel, can readily be followed. The constructions of the rules have been very liberal, but should not be so made liberal as to annul the rules themselves. Nor can the court give a strained construction in one case, and a more liberal in another. The application of the rules, as made by the courts, is without respect to the case or the person. In some instances neglect or oversight of counsel may work a hardship upon clients; but this case can furnish no reason for the construction of the rules such as should practically annul them. These rules apply to all persons, all cases, and all representatives of clients, alike, and must be construed in one case just as they have been or will be in another, irrespective of the case, the parties, or their counsel. What is an abstract of the record and what should it contain under our rules? Speaking generally, it is said: "As a noun the word `abstract' denotes a less quantity containing the virtue and force of a greater quantity." 1 Cyc. 211. As applied to a record it would mean a complete history in short, abbreviated form of the case as found in the record. It would have to be complete enough to show that the questions presented for review have been properly preserved in the case. As to the record proper it would not mean that the whole pleadings should be set out, unless some question urged required it. It would mean, however, that there should be a showing to the effect that pleadings had been filed in some lower court at some particular times, and the character of such pleadings, so that the issues raised could be easily ascertained. It would likewise mean that there should be a concise statement of the judgment and the date of its rendition, and also of the fact that a motion for new trial or in arrest of judgment had been filed, and the time thereof, so that this court can see that it is filed within the four days prescribed by the statute. By this we do not mean that a copy of the record entry showing the filing of the motion should be printed, but as an abstract thereof it could be said: "And thereafter at the same term of court, and within four days after the return of said verdict or rendition of said judgment, to wit, on ____ day of ____, 190__, the defendant (or plaintiff) filed his motion for a new trial, as shown by the record entry made at the time." Even this might be further abbreviated so as to aver and show the same facts.

So, also, should be the showing as to the overruling of such motion, the leave to file bill of exceptions, the filing of bill of exceptions, the affidavit for appeal, and the...

To continue reading

Request your trial
238 cases
  • State v. Ellison
    • United States
    • Missouri Supreme Court
    • July 2, 1917
    ...in the following cases: McDonald & Co. v. Hoover, 142 Mo. 484, 44 S. W. 334; Martin v. Castle, 182 Mo. 216, 81 S. W. 426; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Mahaffey v. Cemetery Ass'n, 253 Mo. 135, 161 S. W. 701; Municipal Securities Corp. v. Kansas City, 265 Mo. 252, 177 S. W. ......
  • Maxwell v. Andrew County, 36807.
    • United States
    • Missouri Supreme Court
    • January 4, 1941
    ... ... Secs. 11791, 11792, 11793, R.S. 1929 ...         G.C. Sparks, K.D. Cross, D.A. Murphy, Charles B. Turney and Harding, Murphy & Tucker for respondents ...         (1) The appeal herein should be dismissed, or the judgment affirmed, because — (a) ... Dorman, 236 Mo. 416, 139 S.W. 395; Rose v. Township Board, 163 Mo. 396, 63 S.W. 698; State v. Ruck, 194 Mo. 428, 92 S.W. 706; Harding v. Bedoll, 202 Mo. 625, 100 S.W. 638; Stark v. Zehnder, 204 Mo. 442, 102 S.W. 992; Betzler v. James, 227 Mo. 387, 126 S.W. 1007. Omission of bill of ... ...
  • State ex rel. Conway v. Hiller
    • United States
    • Missouri Supreme Court
    • December 8, 1915
    ...221 Mo. l. c. 112, 119 S.W. 1091; Thompson v. Ruddick, 213 Mo. 561, 564-5, 111 S.W. 1131; Stark v. Zehnder, 204 Mo. 442, 102 S.W. 992; Harding v. Bedoll, 202 Mo. l. c. 625 at 100 S.W. 638; Reno v. Fitz Jarrell, 163 Mo. 411, 63 S.W. 808.] There are many other cases in the appellate courts of......
  • Maxwell v. Andrew County
    • United States
    • Missouri Supreme Court
    • January 4, 1941
    ... ... 11791, 11792, 11793, R. S. 1929 ...           G ... C. Sparks, K. D. Cross, D. A. Murphy, Charles B. Turney ... and Harding, Murphy & Tucker for respondents ...          (1) The ... appeal herein should be dismissed, or the judgment affirmed, ... because -- ... 416, 139 S.W. 395; Rose v. Township ... Board, 163 Mo. 396, 63 S.W. 698; State v. Ruck, ... 194 Mo. 428, 92 S.W. 706; Harding v. Bedoll, 202 Mo ... 625, 100 S.W. 638; Stark v. Zehnder, 204 Mo. 442, ... 102 S.W. 992; Betzler v. James, 227 Mo. 387, 126 ... S.W. 1007. Omission ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT