Moore v. Harmes

• Decision Date: 04 February 1907
• Citation: 99 S.W. 764,123 Mo. App. 34
• Parties: MOORE v. HARMES.
• Court: Missouri Court of Appeals

99 S.W. 764

123 Mo. App. 34

MOORE v. HARMES.

Kansas City Court of Appeals. Missouri.

February 4, 1907.

1. JUSTICES OF THE PEACE—ACTIONS—STATEMENTS —SUFFICIENCY.

A statement, in an action in justice's court, which avers that plaintiff for cause of action states that defendant owes him $10 for a trip to a designated place for the examination and correction of an abstract, for which sum plaintiff prays judgment, together with costs, is sufficient.

2. APPEAL—REVIEW—RECORD—SUFFICIENCY.

The giving of a peremptory instruction will not be reviewed, where the abstract does not contain the entire evidence.

3. SAME.

The overruling of a motion for a new trial will not be reviewed, in the absence of an exception thereto evidenced by the bill of exceptions.

Appeal from Circuit Court, Benton County; Chas. A. Denton, Judge.

Action by S. E. Moore against John H. Harmes. From a judgment for defendant, plaintiff appeals. Affirmed.

D. Brunjes, for appellant. S. E. Moore and F. Houston, for respondent.

ELLISON, J.

This action was begun before a justice of the peace. On appeal to the circuit court plaintiff prevailed.

The action is based on the following statement: "Plaintiff, for cause of action, states that defendants owe him the sum of $10 for trip to Warsaw, examination and correction of abstract. For which sum of $10 the plaintiff prays judgment, and for his costs laid out and expended." This statement we regard as in every way sufficient, in an action before a justice of the peace, and defendant's objections thereto were properly overruled.

At the close of the evidence the trial court gave a peremptory instruction to find for the plaintiff. In the motion for new trial objection was made to such action, as well as to the court refusing a demurrer to the evidence offered by defendant. In passing on the correctness of the court's rulings in these respects, it is necessary that the abstract contain the entire evidence as given at the trial. Defendant has not furnished us with a large part of it; but, on the contrary, has incorporated into his abstract only his version of what the evidence was. This will not do, for there might very well be some important matter omitted which would change the whole aspect of the case. In other words, we must assume the court's action was proper until the contrary is shown, and as that has not been done, and could not be done short of a complete abstract of all the evidence, we must rule the peremptory instruction was...