Mitchell v. Robertson & Rissler

• Decision Date: 05 March 1906
• Citation: 93 S.W. 871,117 Mo. App. 348
• Court: Missouri Court of Appeals
• Parties: MITCHELL v. ROBERTSON & RISSLER.

93 S.W. 871

117 Mo. App. 348

MITCHELL v. ROBERTSON & RISSLER.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. APPEAL — INSTRUCTIONS—FAILURE TO EXCEPT.

Rulings of the trial court on instructions will not be reviewed on appeal, where no exceptions were taken.

2. SAME—BILL OF EXCEPTIONS—NECESSITY.

Remarks of counsel set out in the motion for a new trial, but not appearing in the bill of exceptions in the abstract, will not be considered on appeal.

Appeal from Circuit Court, Cooper County; Samuel Davis, Judge.

Action by John N. Mitchell against one Robertson and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

John Cosgrove and H. S. Booth, for appellant. W. F. Johnson, for respondents.

ELLISON, J.

The plaintiff instituted this action by filing a statement before a justice of the peace, wherein he claimed damages for breach of warranty, that two mules sold to him by defendants were "sound and of good wind." The breach alleged was that the mules were not of good wind. The plaintiff recovered judgment in the justice's court, but on appeal to the circuit court the defendants prevailed, and plaintiff has brought the case here.

The only matters complained of in plaintiff's brief relate to the instructions and remarks of defendants' counsel in the course of his argument to the jury. The abstract discloses that no exception was taken to the action taken by the court on the instructions, and they are therefore not open to consideration in this court. The remarks of counsel, of which complaint is made here, are set out in the motion for new trial, but they do not appear in the bill of exceptions presented in the abstract. The statement in a motion for new trial of something as having occurred at the trial is not proper evidence that it did occur. The matter stated in the motion should also appear in the bill of exceptions. The bill of exceptions stating that a motion for new trial was filed (and setting it out) is not a statement that what is therein alleged is true. State v. Whalen, 128 Mo. 467, 31 S. W. 2; State v. Foster, 115 Mo. 448, 22 S. W. 468.

The judgment is affirmed. All concur.