Owens v. Mathews

• Decision Date: 01 March 1910
• Parties: OWENS v. MATHEWS et al.
• Court: Missouri Supreme Court

125 S.W. 1100

226 Mo. 77

OWENS v. MATHEWS et al.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. APPEAL AND ERROR (§ 553) — SAVING EXCEPTIONS — COURT ENTRIES.

Exceptions taken to the overruling of a motion for arrest of judgment and new trial are not properly saved by a court entry, but should be saved in a bill of exceptions.

2. APPEAL AND ERROR (§ 1) — RIGHT TO APPEAL.

The right of appeal is purely statutory and is controlled by the statute and rules of the appellate court.

3. APPEAL AND ERROR (§ 600) — TRANSCRIPT OF RECORD — SUFFICIENCY — INCORPORATION OF BILL OF EXCEPTIONS.

Where an appeal is presented on a printed transcript, in which record entries and record proper are commingled with matters of exception, and no caption or word tells where the bill of exceptions begins or leaves off, the appellate court cannot review the exceptions presented, nor the evidence, nor the motion in arrest for new trial, nor an objection to the sufficiency of the petition made in motion in arrest.

Appeal from Circuit Court, Hickory County; Argus Cox, Judge.

Action by Walter B. Owens against J. A. Mathews and another. From a judgment for plaintiff, defendants appeal. Affirmed.

J. C. Hargus, Jno. A. Gilbreath, T. O. Williams, and W. A. Dollarhide, for appellants. Wm. L. Pitts, for respondent.

LAMM, P. J.

Plaintiff sued to cancel a mining or prospecting lease because of an alleged wrongful alteration and a failure to perform certain essential conditions and covenants upon the part of the lessees. Second count in ejectment. Judgment for plaintiff on both, and defendants appeal.

The cause is here on a full printed transcript, in which record entries and record proper are commingled with matters of exception in an undistinguishable mass. No caption or word tells where the bill of exceptions begins or leaves off. A bill of exceptions was filed; but what it contains we do not know. We look in vain to see if the exceptions presented are preserved in such bill. Nor can we consider the evidence, because we cannot tell whether it was preserved in a bill of exceptions; nor the motions in arrest and for a new trial, for like reason. Exceptions appear to have been taken to the overruling of those motions; but apparently they were saved by a court entry (precisely where they ought not to appear), and, if saved in a bill of exceptions, that fact is not made to appear. We might pick and choose, sort out and rearrange the matter presented to us, and hazard a guess one way or the other on such vital matters, were it not that for obvious rules of reason and justice we are precluded from guessing at all. No litigant is entitled to appeal at common law, nor as a matter of...