Maupin v. Western Union Telegraph Co.

• Decision Date: 01 April 1912
• Citation: 145 S.W. 517
• Parties: MAUPIN v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

145 S.W. 517

MAUPIN v. WESTERN UNION TELEGRAPH CO.

Kansas City Court of Appeals. Missouri.

April 1, 1912.

1. APPEAL AND ERROR (§ 581) — RECORD — ABSTRACTS—REQUISITES.

An original abstract which fails to show any record entry of the filing of motions for new trial or in arrest, or the filing of an affidavit for appeal or the granting of an appeal, is fatally defective, though it shows that motions for new trial and in arrest were overruled or acted on.

2. APPEAL AND ERROR (§ 590) — ABSTRACT OF RECORD—DEFECTS—GROUND FOR SUPPLEMENTAL ABSTRACT.

An affidavit of the attorney of appellant, excusing omissions in the original abstract failing to show record entry of the filing of motions for new trial or in arrest, or the filing of an affidavit for appeal or the granting of an appeal, which avers that when he prepared the abstract of record there was, by some mistake, incorporated into the abstract a mere memorandum from which he was dictating his abstract, that he expected to dictate the usual statements as to the motions, and that at the time he was corresponding with the clerk of the court to get certain dates does not show an excuse for failure to prepare and file a proper abstract; and the court on appeal will not permit the filing of a supplemental abstract.

3. APPEAL AND ERROR (§ 554) — RECORD — BILL OF EXCEPTIONS—NECESSITY.

Where there is no bill of exceptions, and the petition, stating a cause of action, supports the judgment, the court on appeal will affirm the judgment.

Appeal from Circuit Court, Adair County; Nat. M. Shelton, Judge.

Action by Maggie Maupin against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

G. Pitman Smith, of Montgomery City, for appellant. Smoot & Cooley, of Kirksville, for respondent.

BROADDUS, P. J.

The respondent, upon being served with appellant's abstract, served upon the appellant her brief and argument, in which objections are made to the sufficiency of said abstract, whereupon the appellant made application to this court for leave to file a supplemental abstract; but there was no order of court permitting him to so do. However, the paper was lodged with the clerk, and the question presented is: Shall it be allowed, filed, and considered by the court as a part of the record?

The original abstract fails to show that any record entry was made of the filing of the motion for a new trial or in arrest of judgment, or the filing of an affidavit for appeal, or the granting of an appeal. It does show that the motion for a new trial and in arrest of judgment was overruled or acted upon by the court. The failure of the abstract to state the foregoing facts renders it fatally defective. It is equivalent to no abstract. Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Mason v. Smith, 124 Mo. App. 597, 101 S. W. 1149; Clay v. Publishing Co., 200 Mo., loc. cit. 673, 98 S. W. 575; Harris v. Wilson, 199...