McKee v. Jones Dry Goods Co.
| Decision Date | 05 December 1910 |
| Citation | 132 S.W. 1191,152 Mo.App. 241 |
| Parties | SUSIE E. McKEE, Respondent, v. JONES DRY GOODS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Original Opinion of December 5, 1910, Reported at: 152 Mo.App. 241.
Judgment affirmed.
A rehearing was granted in this case that it might be considered in connection with the record in the case of city of St. Joseph v. Ensworth, 65 Mo. 628, and that it might be clearly seen upon what ground the decision in that case was based. A certified copy of that record has been obtained by counsel and we find it stated in the record proper that the trial was begun on the 15th of September 1874, and, on the same day a non-suit was taken. That within four days, on the 19th of that month, a motion to set aside the non-suit was filed. That motion was not decided until the following 12th of January, 1875, when it was overruled.
The record proper then recites that on the 14th of January, 1875, a motion in arrest of judgment was filed, and that on the 30th of that month it was overruled. It may be remarked that the motion not being filed within four days after the trial, was too late (sec. 6, chap. 172, R. S. 1865), but that was not noticed by the court, probably from the fact that the bill of exceptions stated the filing was within four days and the court assumed that to be the fact.
Turning to the bill of exceptions we find that after stating the beginning of the trial and an adverse ruling on the admission of evidence, it continues as follows: "Thereupon the plaintiff took a non-suit with leave to move to set the same aside and for new trial. That thereafter, on September 19, 1874, and within four days after verdict, plaintiff filed a motion to set aside the non-suit and for new trial, which said motion is as follows:" The motion is then copied. Immediately following the copy of the motion, the bill continues, and, as just stated, contradicts the record proper: "That thereafter and within four days after verdict, plaintiff filed a motion in arrest of judgment, which said motion is as follows:" The motion in arrest is then copied, and immediately following the copy of the motion the bill continues in these words: "Which said motions after argument were by the court overruled; to which rulings of the court plaintiff then excepted and still excepts." It is then recited that final judgment was rendered, etc.
The foregoing is the record upon which the Supreme Court pronounced judgment and founded its opinion in City of St. Joseph v. Ensworth. It is, substantially, the counterpart of what we have in the present case. Whatever difference there is in the two records, affords more room for the insistence that there was a separate ruling and a separate exception on each motion in that case, than there is in this. For, in that case, the decision of the court is stated in the plural, viz.: "To the rulings" of the court; while in this case the decision is stated in the singular, to the "action, ruling and decision of the court." In that case it could, possibly, have been argued that since the record stated that the exception was taken to the rulings of the court, it showed, by inference, that the court had ruled separately on the two motions, upon each of which separate exception was taken. But not so in this case, for the language of the record only discloses one ruling on two motions and one exception taken.
In this connection we note...
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