Mackley v. St. Louis Smelting & Refining Co.

• Decision Date: 01 July 1911
• Citation: 139 S.W. 140,235 Mo. 488
• Court: Missouri Supreme Court
• Parties: MACKLEY v. ST. LOUIS SMELTING & REFINING CO.

139 S.W. 140

235 Mo. 488

MACKLEY v. ST. LOUIS SMELTING & REFINING CO.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

APPEAL AND ERROR (§§ 500, 511, 499)—ABSTRACT OF RECORD — MATTERS INCLUDED — MOTION.

Where plaintiff files a motion to set aside a nonsuit, but the abstract of the record proper does not show that this motion was overruled or that a bill of exceptions was filed, and that part of the abstract purporting to set out the matters of exception neither contains nor calls for the motion to set aside the nonsuit, the matters of exception cannot be reviewed.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by William Mackley against the St. Louis Smelting & Refining Company. Plaintiff nonsuited, and he appeals. Affirmed.

R. C. Tucker, for appellant. Benjamin H. Marbury, for respondent.

BLAIR, C.

At the conclusion of appellant's evidence, defendant offered a demurrer thereto. A nonsuit was taken and a motion to set aside was filed. The abstract of the record proper does not show that this motion was overruled, nor that a bill of exceptions was filed. That part of the abstract which purports to set out the matters of exception neither contains nor calls for the motion to set aside the nonsuit. Under these circumstances matters of exception cannot be reviewed. Wafford v. St. L. & S. F. Ry. Co., 195 Mo. 211, 93 S. W. 247; Nickerson v. Peery, 163 Mo. 77, 63 S. W. 381; State ex rel. v. Boyle, 181 Mo. 695, 81 S. W. 161; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Rotchford v. Creamer, 65 Mo. 48; Stevenson v. Saline County, 65 Mo. 425; Western Storage & Warehouse Co. v. Glasner, 150 Mo. 426, 52 S. W. 237; Shaffer v. Detie et al., 191 Mo. 377, 90 S. W. 131; Jenkins v. Shannon Co., 226 Mo. 187, 125 S. W. 1100; Wade v. Alexander, 226 Mo. 92, 125 S. W. 1108; Harper v. Oil Co., 74 Mo. App. 644.

Error being neither assigned nor apparent on the record proper, the judgment must be affirmed.

BROWN, C., concurs.

PER CURIAM.

The foregoing opinion of BLAIR, Commissioner, is adopted as the opinion of the court. All the Judges concur.