Lawson v. Mills

• Decision Date: 23 May 1899
• Citation: 150 Mo. 428,51 S.W. 678
• Parties: LAWSON v. MILLS.
• Court: Missouri Supreme Court

51 S.W. 678

150 Mo. 428

LAWSON v. MILLS.

Supreme Court of Missouri, Division No. 1.

May 23, 1899.

APPEAL — TRANSCRIPT OF RECORD — BILL OF EXCEPTIONS — FILING.

1. Rev. St. 1889, § 2253, requiring appellant to file a perfect transcript of the record and proceedings in the cause, or, in lieu thereof, a certified copy of the record entry of the judgment or decree appealed from, is not complied with by filing a bill of exceptions, without a statement of the record and proceedings in the cause, or any certified copy of the record showing that the bill of exceptions was ever filed.

2. Where the bill of exceptions was filed after the trial term, the transcript of the record on appeal must show that the time for filing it was extended, and a recital to that effect in the bill of exceptions is insufficient.

Appeal from circuit court, Dade county; D. P. Stratton, Judge.

Action by Charles Lawson against James W. Mills. There was a judgment for plaintiff, and defendant appeals. Dismissed.

W. Cloud, for appellant. Wm. B. Skinner and Henry Brumback, for respondent.

MARSHALL, J.

This cause is not before the court in such shape as to entitle the appellant to have the judgment of the circuit court reviewed. There is no "perfect transcript of the record and proceedings in the cause, or, in lieu of such transcript, a certified copy of the record entry of the judgment, order, or decree appealed from," before the court, as is required by section 2253, Rev. St. 1889. A certified copy of what seems to have been a bill of exceptions filed in the trial court has been filed in this court, but it is in no sense a perfect transcript. In fact, there is nothing before this court showing any record entry in the cause whatever; nothing to show the institution of the action, the issuance of summons, or the manner of executing it; no petition, answer, or other pleading; a trial, judgment, motion for new trial; the filing of a bill of exceptions, nor the granting of an appeal. The paper here filed is purely and simply a bill of exceptions in proper form to preserve matters of exception, and make them part of the record, but there is no certified copy of any order of record showing that the bill of exceptions was ever filed, and this is absolutely necessary, as the bill of exceptions cannot prove itself. State v. Harris, 121 Mo. 445, 26 S. W. 558; Walser v. Wear, 128 Mo., loc. cit. 653, 31 S. W. 38. The bill of exceptions appears to have been filed after the term when the...