Phillips v. Jones

• Decision Date: 30 June 1903
• Parties: PHILLIPS et al. v. JONES et al.
• Court: Missouri Supreme Court

75 S.W. 920

176 Mo. 328

PHILLIPS et al. v. JONES et al.

Supreme Court of Missouri, Division No. 2.

June 30, 1903.

APPEAL — QUESTIONS REVIEWABLE — MOTION FOR NEW TRIAL — RECORD — BILL OF EXCEPTIONS.

1. Alleged error in the admission and rejection of evidence cannot be reviewed on appeal, where no motion for a new trial is made below.

2. The fact that a motion for a new trial was made can only be shown by bill of exceptions, and is not made to appear by copying the motion into the record proper.

Appeal from Circuit Court, Lawrence County; H. C. Pepper, Judge.

Action by Jesse H. Phillips and others against Lucy A. Jones and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

J. W. Farris and R. S. Phillips, for appellants. J. L. Newhouse, for respondents.

GANTT, J.

This is an appeal from the circuit court of Lawrence county. The action is ejectment for certain lands in Laclede county, and was originally brought in Laclede county, and a change of venue awarded to Lawrence county. The judgment was for defendants, and plaintiffs appeal.

A jury was waived, and the cause was tried to the court. No errors are assigned on the record proper. The only points assigned in brief and argument of counsel are the insufficiency of the evidence to sustain the judgment, and the admission of evidence. There is no motion for a new trial incorporated in the bill of exceptions, and as error in the admission and rejection of evidence can only be made to appear in a bill of exceptions, and as such errors can only be reviewed in this court after the attention of the circuit court has been called to them in a motion for new trial, it is plain that there is nothing before us for review. It is true that in the transcript a motion for new trial is copied into the record proper by the clerk, but the preservation of these motions is the special and exclusive office of the bill of exceptions. They can be preserved nowhere else. No recital in the record proper will have any such effect.

In Nichols v. Stevens, 123 Mo., loc. cit. 119, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514, it was ruled that "a recitation in the record of matters not properly belonging thereto cannot be noticed in an appellate court. Matters which are not in fact a part of the record cannot be made such by the mere recital of the clerk." Citing Parkinson v. People (Ill.) 24 N. E. 772; Gould v. Howe, 127 Ill. 251, 19 N. E. 714; Ryan v. Growney, 125 Mo. 474, 28 S. W. 189; State v. Revely, 145 Mo. 660, 47 S. W. 787; State v. Burdett, 145 Mo. 674...