Hopper v. Bowen

• Decision Date: 06 February 1923
• Docket Number: No. 17593.,17593.
• Citation: 249 S.W. 92
• Parties: HOPPER v. BOWEN
• Court: Missouri Court of Appeals

249 S.W. 92

HOPPER v. BOWEN

No. 17593.

St. Louis Court of Appeals. Missouri.

February 6, 1923.

Rehearing Denied March 2, 1923.

Appeal from Circuit Court, Shelby County; V. L. Drain, Judge.

"Not to be officially published." Suit by E. E. Hopper against G. E. Bowen. Judgment for. plaintiff, and defendant appeals. Affirmed.

H. A. Wright, of Clarence, for appellant. Win. L. Hambrick, of Clarence, for respondent.

ALLEN, P. J.

This is a suit in equity by a partner against his copartner for a settlement of the partnership affairs and an accounting. It appears that in 1912 plaintiff and defendant entered into a partnership for the purpose of conducting a retail coal business in Clarence, Shelby county, Mo., in which business they were engaged for a period as such partners, embarking also in the ice business for a time. Each partner, it seems, was also engaged in another business or other businesses. It is said that no adequate system of bookkeeping was used in the partnership business; that the business did not succeed well, and partnership bills were sometimes paid out of partnership funds and sometimes by the partners individually, the partners at times contributing equally and upon other occasions unequally to the payment of partnership debts; and that these matters and other complications rendered it difficult to arrive at a proper accounting between the parties.

The cause was referred to a referee; Hon. George N. Davis, who heard the evidence and duly filed his report, recommending judgment in favor of plaintiff for $517.02, the costs to be equally divided between the parties. Defendant filed a list of exceptions to the referee's report, which were overruled. Judgment was thereupon entered in accordance with the recommendation of the referee, and the defendant appealed.

It is sought here to challenge the findings of the referee as to certain items allowed by him in plaintiff's favor. The respondent, however, makes the point that the bill of exceptions shows no motion for a new trial filed by defendant. In fact respondent says that no motion for a new trial was filed at all; but the record proper before us, which has not been properly challenged, recites that a motion for new trial was filed and overruled on the same day on which the judgment was entered, and we must view the record accordingly. However, no motion for a new trial appears in the bill of exceptions, where it should be set out in full; nor indeed do the contents of the motion, if one was filed, appear anywhere in the record. And with the record in this condition it is impossible for us to pass upon the matters here sought to be reviewed. It is thoroughly settled law that, as an appellate court,...