Keet & Rountree Dry Goods Co. v. Williams

• Citation: 202 S.W. 620
• Decision Date: 20 April 1918
• Docket Number: No. 2191.,2191.
• Parties: KEEP & ROUNTREE DRY GOODS CO. v. WILLIAMS.
• Court: Court of Appeal of Missouri (US)

202 S.W. 620

KEEP & ROUNTREE DRY GOODS CO. v. WILLIAMS.

No. 2191.

Springfield Court of Appeals. Missouri.

April 20, 1918.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the Keet & Rountree Dry Goods Company against Allie Williams, administratrix. From a judgment for defendant, plaintiff appeals. Affirmed.

Addison Brown and Williams & Galt, both of Springfield, for appellant. G. G. Lydy, of Springfield, for respondent.

STURGIS, P. J.

The plaintiffs are unpaid creditors of the estate of G. A. Williams, deceased, and the defendant is the administratrix an widow of said Williams. The administratrix filed what purported to be a final settlement in such estate showing no assets in her hands, but, on the contrary, that the estate was indebted to her. So far as this record shows, no objections were made to this settlement nor its correctness challenged. The probate court on its own motion approved said settlement "except as to the nonpayment of all the costs of administration," reciting:

That only first-class claims have been paid; that the costs have not been fully paid, that the personal estate is fully exhausted; that the estate owes the administratrix $235.91; that "the real estate of said decedent is the homestead of his widow and two minor children, and is not liable at this time for the payment of the debts, and is not of a greater value probably than $1,500. `Whereupon, it is ordered by the court that the administration upon said estate be and the same is hereby suspended until the majority of said minors, and the remarriage or death of the widow of the decedent.'"

Some time later, and whether in due time or not is contested, the plaintiff creditors filed an affidavit for appeal which is not in this record, but in lieu thereof the plaintiffs (appellants) say that same is in due form and was filed in due time, and "recites, among other things, that the appeal is taken from the judgment of the probate court approving the first semiannual settlement, approved January 26, 1916, and from the order of the probate court approving the final settlement, approved May 20, 1916, and from the order setting aside an order approving the sale of the merchandise and fixtures of the estate of C. E. Williams."

In appellants' abstract of the record proper, they say that when the case reached the circuit court the administratrix filed a motion in that court to dismiss the appeal on these grounds:

"First. No appeal is allowed by law from the order of the probate court approving the first semiannual settlement of said administratrix in said estate.

"Second. An order approving the sale was made on August 9, 1915, and no appeal from the order setting aside the order approving the sale was taken at the term of the probate court when said order setting aside said approval was made nor within 10 days after said term.

"Third. No final settlement of said estate has been made, and the alleged appeal therefrom is not authorized by law.

"Fourth. The appeal herein was not taken within the time required by law, and the circuit court has no jurisdiction of this cause.

"Fifth. The affidavit for appeal is not sufficient, and the probate court had no authority to grant an appeal at the October term, 1916, thereof."

It is then stated that this motion was sustained, but neither in the record proper nor in the bill of exceptions as allowed and filed is there any exception saved as to the court's action in sustaining this motion. After the motion was sustained, the plaintiffs filed a motion to set aside the order of dismissal, and, this being overruled, took leave to file a bill of exceptions. The bill of exceptions as filed recites that, the motion to dismiss the appeal coming on to be beard, certain evidence was introduced by each party, setting out the evidence, and reciting further that after hearing the evidence and arguments the court sustained the motion to dismiss. The bill of exceptions, however, neither contains the motion to dismiss nor shows any exception to the court's action in sustaining the same.

The only error assigned in this court is that the court erred in sustaining the motion to dismiss the appeal. The condition of the record, however, is such that this court cannot pass on the merits of the assignment. There are few questions that have been passed on more frequently than that motions in a case are not part of the record unless copied into the bill of exceptions. In Martin v. Estate of Nichols, 63 Mo. App. 342, 346, the court said:

"The adjudged cases in this state conclusively show that for 40 years and upward, the rule of appellate practice has been that nothing but a bill of exceptions could make a motion part of the record, and that unless incorporated bodily in the bill it could not be noticed by the appellate court. Jefferson City v. Opel, 67 Mo. 394, and the cases there cited; McNeil v. Ins. Co., 30 Mo. App. 306. And in order to put a motion on the record so as to become a part thereof, it was necessary to except to the ruling of the court thereon and to have the bill of exceptions state the fact. Loudon v. King, 22 Mo. 336."

See, also, Kammann v. Bimmerle Painting Co., 144 Mo. App. 580, 581, 129 S. W. 48; State v. Sollars (Sup.) 200 S. W. 1052; Mockler v. Skellett, 30 Mo. App. 174, 176; Brown, Adm'r, v. Foote, 55 Mo. 178.

It is equally imperative that the bill of exceptions show that the party aggrieved saved his exception at the time to the action of the court in sustaining or overruling a motion. It is not enough that such party later filed a motion, in the nature of a motion for new trial, to have the order sustaining the motion to set aside and then saved his exception to the order overruling this latter motion. To present the...