Nickerson v. Peery

• Citation: 63 S.W. 381,163 Mo. 77
• Court: United States State Supreme Court of Missouri
• Decision Date: 21 May 1901
• Parties: NICKERSON v. PEERY et al.

63 S.W. 381

163 Mo. 77

NICKERSON v. PEERY et al.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

NONSUIT—BILL OF EXCEPTIONS—APPEAL.

A refusal to set aside a nonsuit will not be reviewed unless preserved by a bill of exceptions.

Appeal from circuit court, Linn county.

Action by James Nickerson against J. Fred Peery and another. From a refusal to set aside a nonsuit, plaintiff appeals. Affirmed.

C. C. Bigger, A. A. Bailey, and J. M. Johnson, for appellant. A. W. Mullins, for respondents.

SHERWOOD, J.

Action for damages caused by the fall of a bridge. Defendant Ramsay successfully demurred to the petition. What was then done—whether judgment was entered on the demurrer, or whether plaintiff asked leave to plead over—does not appear. Peery was unsuccessful with his demurrer. Thereupon he answered. Then the cause came on for trial against both defendants. At this juncture the record makes the following recitals: "James Nickerson vs. J. Fred Peery et al. Now, at this day comes the plaintiff, by his attorney, and voluntarily takes nonsuit, with leave to move to set the same aside. It is therefore ordered and adjudged by the court that the plaintiff take nothing by his writ against the defendants, and that the defendants go hence without day, and recover of the plaintiff costs in this behalf laid out and expended, and have execution therefor. And on the same day, to wit, the said 1st day of October, 1897, the following other proceeding was had in this cause, and entered of record, to wit: `James Nickerson vs. J. Fred Peery et al. Now, at this day comes the plaintiff herein, by his attorneys, and here files his motion to set aside nonsuit in this cause, which said motion was immediately taken up by agreement, and considered by the court, and the same was by the court overruled; to which action and ruling of the court in overruling plaintiff's said motion plaintiff then and there excepted at the time, and here saves his exceptions.'" What the grounds of this motion were, or why it was overruled, we are not informed. The only way such a motion, or the action of the court thereon, or the exceptions saved to such action, could have been preserved, was by a bill of exceptions. Recitals in the record proper do not and cannot preserve mere matters of exception. Newton v. Newton (Mo.) 61 S. W. 883; State v. Wear, 145 Mo., loc. cit. 204, 205, 46 S. W. 1099; Nichols v. Stevens, 123 Mo., loc. cit. 119, 25 S. W. 578, 27 S. W. 613, and cases cited; Ryan...