Hays v. Foos
| Decision Date | 27 November 1909 |
| Parties | HAYS v. FOOS. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Nodaway County.
Action by James T. Hays against James C. Foos. From a judgment for defendant, plaintiff appeals. Affirmed.
B. R. Martin and Anothony & Ford, for appellant. John M. Dawson, for respondent.
This is an action under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet title to about 2½ acres of land in Nodaway county, Mo.
The chief error assigned is that the trial court misjudged the facts in evidence. Respondent challenges the abstract of record on the ground that appellant's abstract fails to set out all the evidence. It will not be necessary to go into this contention, for the reason that in underaking so to do it appears that the abstract before us fails to mention the motion, for new trial under the head of "Bill of Exceptions." In what purports to be "Appellant's Statement, Abstract, and Brief," we find, first, a "statement." This is followed by what is headed "Abstract of Record." Under this heading we find entries showing the filing of the petition and the petition itself, a demurrer and the ruling of the court thereon, the filing of an answer and the answer itself, an entry showing that after the hearing of the testimony a continuance of the cause for argument was made, an entry showing the filing of the motion for new trial and the overruling thereof, and in this record entry it is stated that there was an exception taken to the action of the court in overruling the motion. The judgment also appears under this heading. After these things, which appear under the heading of "Abstract of the Record," as aforesaid, we find the heading "Bill of Exceptions." Under this heading, and in abstracting the bill of exceptions, the motion for new trial, or the ruling thereon, is nowhere mentioned. No exception to the action of the court in overruling this motion is found under the heading of "Bill of Exceptions." It has long been ruled that the bill of exceptions is the place wherein an exception to the action of the court in overruling a motion for new trial should be lodged. Such an exception has no place in the record proper. The record proper must show the filing of the motion, and the action of the court thereon; but, if an...
To continue reading
Request your trial
-
State v. Ellison
...235 Mo. loc. cit. 51, 138 S. W. 11; Betzler v. James, 227 Mo. loc. cit. 387, 126 S. W. 1007; Hays v. Foos, 223 Mo. loc. cit. 423, 424, 122 S. W. 1038; State ex rel. v. Adkins, 221 Mo. loc. cit. 120, 119 S. W. 1091; Groves v. Terry, 219 Mo. loc. cit. 597, 598, 117 S. W. 1167; Gilchrist v. Br......
-
Schwartzman v. London & Lancashire Fire Ins. Co., Limited, of Liverpool, England
...upon appeal. Their observance is of such importance that we have held that they cannot be waived by the consent of the parties. [Hays v. Foos, 223 Mo. 421; Disse v. Frank, 52 Mo. 551.] In recognition of this statute (Sec. 1511) and of our Rule 15 this court has affirmed judgments or dismiss......
-
State ex rel. Conway v. Hiller
...v. Young, 248 Mo. 346, 154 S.W. 87; St. Louis v. Henning, 235 Mo. l. c. 44; Owens v. Mathews, 226 Mo. 77, 125 S.W. 1100; Hays v. Foos, 223 Mo. 421, 122 S.W. 1038; State ex rel. v. Adkins, 221 Mo. l. c. 112, 119 1091; Thompson v. Ruddick, 213 Mo. 561, 564-5, 111 S.W. 1131; Stark v. Zehnder, ......
-
Miller v. Kansas City Light & Power Co.
...111 S. W. 1128; Groves v. Terry, 219 Mo. 597, 598, 117 S. W. 1167; State ex rel. v. Adkins, 221 Mo. 120, 119 S. W. 1091; Hays v. Foos, 223 Mo. 423, 424, 122 S. W. 1038; Betzler v. James, 227 Mo. 387, 126 S. W. 1007; St. Louis v. Henning, 235 Mo. 44, 138 S. W. 5; Blanchard v. Dorman, 236 Mo.......