Keaton v. Weber

• Decision Date: 31 March 1911
• Citation: 233 Mo. 691,136 S.W. 342
• Parties: KEATON v. WEBER.
• Court: Missouri Supreme Court

136 S.W. 342

233 Mo. 691

KEATON v. WEBER.

Supreme Court of Missouri, Division No. 1.

March 31, 1911.

1. APPEAL AND ERROR (§ 581)—RECORD—ABSTRACT —MOTION FOR NEW TRIAL.

The filing of a motion for a new trial must appear from the abstract of the record proper, and that it appears from the abstract of the bill of exceptions is insufficient.

2. APPEAL AND ERROR (§ 581)—RECORD—ABSTRACT —AFFIDAVIT OF APPEAL.

Filing of an affidavit for appeal at the term at which the appeal was granted as required by statute must appear in the abstract of the record proper.

3. APPEAL AND ERROR (§ 581)—RECORD—ABSTRACT —BILL OF EXCEPTIONS.

The abstract of the record should show that the bill of exceptions was signed by the court, and a record entry made showing the filing of the same.

4. APPEAL AND ERROR (§ 586)—RECORD—ABSTRACT —SUFFICIENCY.

An abstract of a record is insufficient where it does not distinguish matters of exception from matters of the record proper.

5. APPEAL AND ERROR (§ 586)—RECORD—ABSTRACT —MATTERS PRESENTED FOR REVIEW.

Where the abstract of the record failed to show that the motion for a new trial had been filed, or that an affidavit of appeal was filed at the term when the appeal was granted, or that the bill of exceptions was ever signed by the court, or that a record entry of the filing of the bill was made, or to distinguish matters of exception from matters of record proper, there is nothing properly before the court save the petition, answer, reply, and judgment.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by C. L. Keaton against Elizabeth A. Weber. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

This suit was brought in the circuit court of Stoddard county to have the rights and interests of the parties thereto ascertained and determined to a certain tract of land under section 650, R. S. 1899. A trial was had, which resulted in a judgment for the defendant, and, after proper steps were taken, the plaintiff appealed the cause to this court. At the threshold of the case we are met with the following motion to affirm the judgment, to wit (formal parts omitted):

"Comes now Elizabeth A. Weber, the respondent in the above cause, and moves the court to affirm the judgment rendered by the circuit court therein, and as grounds for said motion alleges the following:

"(a) The alleged abstract of the record filed by the appellant in said cause is insufficient because of the following fatal defects:

"(1) Said alleged abstract of the record does not show that any motion for a new trial was ever filed by the appellant in the circuit court.

"(2) Said alleged abstract of the record does not show that appellant ever filed any affidavit for an appeal.

"(3) Said alleged abstract of the record does not show that appellant was ever granted an appeal, and does not show that appellant was ever granted leave to file a bill of exceptions.

"(4) Said alleged abstract of the record does not show that appellant ever filed a bill of exceptions.

"(5) Statements are made in the abstract of the pretended bill of exceptions that the things mentioned in paragraphs 1, 2, 3, and 4 above were done, but this is not sufficient. These are matters of record proper, and must be shown in the abstract of the record proper.

"(6) Said alleged abstract of the record nowhere shows that there was ever any record entry made of the filing of a motion for a new trial, or that such a motion was filed at the same term of court at which judgment was rendered.

"(7) Said alleged abstract of the record does not show that there was ever any record entry made of the overruling of any motion for a new trial.

"(8) Said alleged abstract of the record does not show at what term of the circuit court appellant filed an affidavit for appeal, and does not show that this was done at the same term at which the motion for a new trial was overruled.

"(9) Said alleged abstract of the record does not show that there was ever any record entry made of the filing of an affidavit for an appeal.

"(10) Said alleged abstract of the record does not show that there was ever any record entry made granting an appeal or granting time in which to file a bill of exceptions.

"(11) Said alleged abstract of the record does not show when an appeal was granted, and does not show that an appeal was granted at the same term of court at which a motion for a new trial was overruled.

"(12) Said alleged abstract of the record does not show that there was ever any record entry made of the filing of a bill of exceptions.

"(13) Said alleged abstract of the record nowhere shows that any bill of exceptions was ever either agreed upon, allowed, signed, or in any way identified, perfected, or made to constitute a part of the record in the case.

"(b) By reason of the defects in said alleged abstract of the record, mentioned above, this court, under its rules and decisions, will do nothing but examine the pleadings and judgment, and, if the...