Pennowfski v. Coerver

• Decision Date: 29 May 1907
• Citation: 103 S.W. 542,205 Mo. 135
• Parties: PENNOWFSKI v. COERVER
• Court: Missouri Supreme Court

103 S.W. 542

205 Mo. 135

PENNOWFSKI v. COERVER

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. APPEAL—RECORD—JUDGMENT ENTRY—CERTIFIED COPY.

Where there was no certified copy of the record entry of the judgment appealed from, showing the term and day of the term, month, and year on which the judgment was rendered, together with the order granting the appeal, as required by Rev. St. 1899, § 813 [Ann. St. 1906, p. 783], nor in lieu thereof any perfect transcript or abstract showing any judgment whatever or order granting an appeal it would be dismissed.

2. SAME.

Where, on appeal from a judgment in ejectment, there was no abstract of the record entry showing a motion for a new trial filed at a given date and term, or that an order was entered overruling the motion, and the abstract filed showed that the bill of exceptions was filed in vacation, but there was no abstract of a record entry showing that time was given to file the bill of exceptions, the appeal would be dismissed, though all such matters in fact appeared in the bill of exceptions.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

Ejectment by Mary E. Pennowfski against William H. Coerver. From a judgment for plaintiff, defendant appeals. Dismissed.

Robert L. Wilson, for appellant. Wilson Cramer, for respondent.

LAMM, J.

This was a suit in common form in ejectment, in the Cape Girardeau court of common pleas, to recover possession of parts of two lots "in range D" in the city of Cape Girardeau, 43 feet front by 168 feet in depth, described by metes and bounds. Ouster is laid as of the 29th of August, 1901. The answer raised legal defenses only, to wit: A general denial; a plea of defendant's right to possession under a lease from a landlord who was plaintiff's grantor, and hence the common source of title; and full performance of the terms of the lease on defendant's part. The replication was a general denial. At a trial to a jury, semble, the verdict was in favor of plaintiff, and defendant ostensibly appealed; but through inadvertence he has made it impossible for us to consider his appeal, and it must be dismissed for reasons. For instance: (1) Because (imprimis) there is here no certified copy of the record entry of the judgment appealed from, "showing the term and day of the term, month and year upon which the same shall have been rendered, together with the order granting the appeal," as required by section 813, Rev. St. 1899 [Ann. St. 1906, p. 783]. Nor is there here, in lieu thereof, any perfect transcript or abstract showing any judgment whatever or order granting an appeal. (2) Because other necessary record entries are absent, in that there is no record entry abstracted showing a motion for a new trial filed at a given date and a given term, in that there is no record entry abstracted showing such motion overruled, in that the abstract...