Philips v. City of Webb City

• Decision Date: 02 March 1908
• Citation: 108 S.W. 593,129 Mo.App. 699
• Parties: FOREST PHILIPS, by next friend, Respondent, v. CITY OF WEBB CITY, Appellant
• Court: Kansas Court of Appeals

108 S.W. 593

129 Mo.App. 699

FOREST PHILIPS, by next friend, Respondent, v. CITY OF WEBB CITY, Appellant

Court of Appeals of Missouri, Kansas City

March 2, 1908

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Judgment affirmed.

James J. Nelson, for appellant, filed brief on merits.

Geo. E. Booth and W. J. Owen for respondent.

(1) Recitals in the bill of exceptions will not supply the abstract of record proper. State v. Harris, 121 Mo. 445; Walser v. Wear, 128 Mo. 652; Bick v. Williams, 181 Mo. 526; Wire Co. v. Brooks, ___ Mo.App. ___, 104 S.W. 482. (2) The record proper must show the filing of the bill of exceptions and if filed in vacation must show the filing within the time allowed and extensions thereof; the recitals in the bill of exceptions cannot supply the defect, as the bill of exceptions is no part of the record unless signed and filed by leave of court. Bick v. Williams, 181 Mo. 526; Whiting v. Lead Co., 195 Mo. 509; Harding v. Bedoll, 202 Mo. 636; Everett v. Butler, 192 Mo. 569; Hill v. Butler Co., 195 Mo. 511. (3) The fact that the record fails to show the filing of the bill of exceptions within the time allowed for filing the same cannot, after respondent has suggested in his brief such failure be cured by supplimental abstract. Harding v. Bedoll, 202 Mo. 636; Hoffman v. London, 96 Mo.App. 188.

OPINION

JOHNSON, J.

--From the record entries in the abstract filed by appellant, it appears that on January 12, 1907, the court made an order extending the time for filing the bill of exceptions "to and including the twelfth day of February, 1907," and that it was not filed until the 19th day of February, 1907--one week after the expiration of the time fixed in the order. The bill of exceptions being filed out of time cannot be considered. We note it contains a recital of a subsequent order further extending the time of filing to include the 19th day of February, but it has been decided on numerous occasions that such matters cannot be proved by the recitals of the bill of exceptions but must be shown by the record proper. [Page Woven Wire Co. v. Brooks, 104 S.W. 482; 126 Mo.App. 495; Cross v. Henderson, Mo.App. , 107 S.W. 1107; Redd v. Railway, 122 Mo.App. 93; Harding v. Bedoll, 202 Mo. 625, 636, 100 S.W. 638; State v. Harris, 121 Mo. 445, 26 S.W. 558; Walser v. Wear, 128 Mo. 652, 31 S.W. 37; Bick v. Williams, 181 Mo. 526, 80 S.W. 885; St. Charles ex rel. v. Deemar, 174 Mo. 122, 73 S.W. 469; Williams v. Harris, 110 Mo.App. 538, 85 S.W. 643.]

None of the errors assigned are properly before us for review and it follows that the judgment must be affirmed. All concur.