Perry v. Stephens

• Decision Date: 30 September 1911
• Citation: 159 Mo. App. 690,139 S.W. 1180
• Parties: PERRY et al. v. STEPHENS.
• Court: Missouri Court of Appeals

139 S.W. 1180

159 Mo. A. 690

PERRY et al. v. STEPHENS.

St. Louis Court of Appeals. Missouri.

September 30, 1911.

Rehearing Denied October 20, 1911.

APPEAL AND ERROR (§ 502) — REVIEW — ORDER DENYING NEW TRIAL — EXCEPTIONS — HOW PRESERVED.

Errors not appearing in the record proper cannot be reviewed, where the abstract of the bill of exceptions filed does not contain an exception to the overruling of the motion for a new trial, it being insufficient that an order copied from the record and incorporated in the abstract sets forth the fact that the motion for a new trial was submitted and overruled, and an exception saved by defendant.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by John Perry and others against John W. Stephens. Judgment for plaintiffs, and defendant appeals. Affirmed.

Ward & Collins, Vance J. Higgs, and Faris & Oliver, for appellant. Reeves & Hawkins, for respondents.

NORTONI, J.

This is an action in trover as for conversion. Plaintiff recovered, and defendant prosecutes the appeal.

The subject of the controversy is a gasoline launch valued at $300, and engaged in the coast trade on the Mississippi river. A jury was waived, and the case tried before the court without instructions being requested or given. There appears to be substantial evidence in the record tending to support the finding and judgment that plaintiffs owned the boat, that defendant converted it, and that its value was $300. But, be this as it may, the matter is not for consideration here, as the bill of exceptions reveals no exception to the action of the court in overruling the motion for a new trial. In this state of affairs there is naught open for review here save the record proper, and this is not challenged. Indeed, it is conceded to be sufficient. Under the established rule of decision, we are not permitted to review the merits of an appeal, unless the bill of exceptions reveals the fact that an exception was saved to the action of the court in overruling the motion for a new trial, and such must appear, too, in the abstract of the bill of exceptions filed here. An order of the court copied from the record and incorporated in the abstract before us sets forth the fact that the motion for a new trial was submitted to the court and overruled by it, and that an exception was saved by defendant to such ruling. But this is not sufficient; for exceptions are not thus exemplified under our practice. Exceptions are not part of the...