La Monte Bank v. Crawford

• Decision Date: 11 February 1929
• Docket Number: No. 16453.,16453.
• Citation: 13 S.W.2d 1101
• Parties: La MONTE BANK v. CRAWFORD.
• Court: Missouri Court of Appeals

13 S.W.2d 1101

La MONTE BANK v. CRAWFORD.

No. 16453.

Kansas City Court of Appeals. Missouri.

February 11, 1929.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be officially published."

Action by the La Monte Bank against Lucy E. Crawford. From a judgment for defendant, plaintiff appeals. Appeal dismissed.

J. T. Montgomery, of Sedalia, for appellant.

A. L. Shortridge, of Sedalia, for respondent.

ARNOLD, J.

This is an action to recover a balance due by the terms of a certain warranty deed, whereby defendant is alleged to have assumed and agreed to pay an existing deed of trust. It appears by the bill of exceptions there was a judgment for defendant, and plaintiff has appealed.

We are called upon to rule, first, on defendant's timely motion to dismiss the appeal for failure of plaintiff to file a proper abstract of the record. In said motion it is charged: (1) There is no abstract of the record proper presented or filed in this court. (2) There is no record entry showing the filing of the petition, and nothing in the document presented showing the filing thereof. (3) There is no record entry showing the filing of an answer in the case, and nothing in the document presented showing the filing of an answer. (4) There is no record entry showing the filing of a reply, and nothing in the document presented showing the filing of a reply. (5) There is no record entry showing the cause was ever tried. (6) There is no entry of the record proper showing the entry of a judgment. (7) There is no entry in the record proper showing the filing of a motion for a new trial. (8) There is no record entry showing the filing of the case in this court. (9) Because what would constitute a part of the record proper and the bill of exceptions are so commingled in the document filed it is impossible for this court to tell one from the other.

The document filed herein by appellant, apparently intended for the record proper, contains a statement presumably the petition in the case, wherein certain allegations are set out and upon which plaintiff has based its right to recover. There is no heading to this document giving it a designation, and nothing to show if and when it was filed. This statement is followed by another which bears the heading amended answer, but there is no entry showing either was ever filed. Following this is a typewritten slip pasted on page 6 of the document presented, stating: "Plaintiff's reply to the defendant's amended answer was a general denial." But there is nothing in the record proper showing it was ever filed. Then follows a statement relating to the evidence introduced in behalf of plaintiff. There is nothing in the record proper showing that a motion for a new trial or in arrest of judgment was ever filed, nor is there anything to show that a judgment ever was rendered in the case. However, in what purports to be a bill of exceptions there is set out a motion for a new trial and the verdict rendered by the jury, but there is no reference thereto in that part of the document filed here which should contain the record proper. Then follows what purports to be the testimony taken in the case. There is no designation showing what is intended as the record proper and what as the bill of exceptions.

This court held in State ex rel. Millspaugh v. Savings & Loan Co. (Mo. App.) 291 S. W. 1080, it was necessary for the appellant, in order to perfect his appeal, to show in the record proper the filing of a motion for new trial and that a judgment was rendered, and to show in the bill of exceptions the motion itself and the ruling thereon, citing Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Wallace v. Libby, 231 Mo. 341, 132 S. W....