Parry v. Gordon Coffee & Spice Co.

• Decision Date: 16 February 1903
• Citation: 98 Mo. App. 409,72 S.W. 130
• Court: Missouri Court of Appeals
• Parties: PARRY v. GORDON COFFEE & SPICE CO.

72 S.W. 130

98 Mo. App. 409

PARRY v. GORDON COFFEE & SPICE CO.

Court of Appeals at Kansas City, Missouri.

February 16, 1903.

APPEAL—RECORD — ABSTRACT — BILL OF ECEPTIONS.

1. Where the abstract does not show any record of the filing of a motion for new trial or in arrest of judgment, the defect is not remedied by a recital of such filing in the bill of exceptions, and where no error appears on the record proper the judgment will be affirmed.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by W. R. Parry against the Gordon Coffee & Spice Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Ellis, Cook & Ellis, for appellant. Geo. F. Ballingal and C. S. Leonard, for respondent.

BROADDUS, J.

Plaintiff having called attention to the defective abstract herein, the defendant filed a motion for leave to supply such defect, accompanied with an amended abstract. The original failed to show that there had been any judgment in the case, or that any bill of exceptions, motion for new trial, or motion in arrest of judgment had been filed. The amended or supplemental abstract shows that a judgment had been rendered, and that a bill of exceptions had been filed, but it does not show any record of the filing of a motion for new trial or in arrest of judgment. The bill of exceptions recites such filing, but that is not sufficient, as such showing must be made from a record entry in the case. Hill v. Combs, 92 Mo. App. 242, and Turney v. Ewins (not yet officially reported) 71 S. W. 543; Crossland v. Admire, 149 Mo. 650, 51 S. W. 463; Lawson v. Mills, 150 Mo. 428, 51 S. W. 678; Western Storage Co. v. Glasner, 150 Mo. 426, 52 S. W. 237.

Finding no error in the record proper, the cause is affirmed. All concur.