Hodson v. McAnerney

• Decision Date: 09 December 1912
• Citation: 167 Mo. App. 468,151 S.W. 754
• Parties: HODSON v. McANERNEY et al.
• Court: Missouri Court of Appeals

151 S.W. 754

167 Mo. App. 468

HODSON v. McANERNEY et al.

Kansas City Court of Appeals. Missouri.

December 9, 1912.

1. APPEAL AND ERROR (§ 511) — RECORD — BILL OF EXCEPTIONS.

Where the record proper does not show the filing of the bill of exceptions, the bill cannot be reviewed.

2. APPEAL AND ERROR (§ 501) — BILL OF EXCEPTIONS — NECESSITY — MOTION FOR JUDGMENT ON PLEADINGS.

A motion for judgment on the pleadings can only be reviewed when there is an exception thereto duly preserved in a bill of exceptions.

Appeal from Circuit Court, Buchanan County; William D. Rusk, Judge.

Action by William S. Hodson against John J. McAnerney and others. Judgment for defendants, and plaintiff appeals. Affirmed.

A. Bowers, of St. Joseph, for appellant. Mytton & Parkinson, of St. Joseph, for respondents.

JOHNSON, J.

This is a suit in equity to enforce the specific performance of a contract for the sale and exchange of real estate. The petition states a good cause of action, the answer pleads affirmative defenses which need not be stated in the view we take of the case, and the reply traverses all of the facts relating to the affirmative defenses save one, the truth of which is admitted. On the theory that this admission precluded a recovery defendant filed a motion for judgment on the pleadings. The court sustained the motion, and rendered judgment for defendant. Plaintiff appealed.

The abstract of the record filed by appellant contains what purports to be a bill of exceptions, but in that part devoted to the record proper omits all reference to the record entries relating to the filing of the bill. It has been ruled time and again that a bill of exceptions cannot be allowed to prove itself by its own recitals, but must be authenticated by record entries which, in turn, must be shown in the abstract of the record proper. Hutton v. Clark, 145 Mo. App. 188, 129 S. W. 1050; Redd v. Railroad, 122 Mo. App. 93, 98 S. W. 89; Woodward v. Insurance Co., 156 Mo. App. 244, 137 S. W. 638; Thorp v. Railroad, 157 Mo. App. 495, 138 S. W. 100; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638.

We cannot consider the bill of exceptions, and therefore cannot review the action of the circuit court in sustaining the motion for judgment on the pleadings. A motion of this character and ruling thereon can only be brought to the attention of an appellate court by an exception to the ruling duly preserved in a bill of exceptions. In Godfrey v. Godfrey, 228 Mo. loc. cit. 513, 128 S. W....