Pugsley v. Ozark Cooperage & Lumber Co.

• Citation: 154 Mo. App. 386,133 S.W. 859
• Parties: PUGSLEY v. OZARK COOPERAGE & LUMBER CO.
• Decision Date: 06 February 1911
• Court: Court of Appeal of Missouri (US)

133 S.W. 859

154 Mo. A. 386

PUGSLEY v. OZARK COOPERAGE & LUMBER CO.

Springfield Court of Appeals. Missouri.

February 6, 1911.

1. APPEAL AND ERROR (§ 583)—RECORD— BILL OF EXCEPTIONS.

An abstract of a bill of exceptions, reciting that a motion for new trial was filed, not setting it out, but referring to the abstract of the record, where it is set out in full, is insufficient to present any exceptions for review.

2. APPEAL AND ERROR (§ 281)—PRESENTATION OF QUESTIONS IN TRIAL COURT—MOTION FOR NEW TRIAL.

In the absence of a motion for new trial, the court on appeal will examine only the record proper for error.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by J. B. Pugsley, doing business as the Knobel Hoop Company, against the Ozark Cooperage & Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. B. Webster, for appellant. J. M. Lashly and Glendy B. Arnold, for respondent.

NIXON, P. J.

This suit was based on a written contract of sale, executed in the state of Arkansas, and was brought by the vendor (respondent) to recover of the appellant the purchase price of 400,000 six-foot, coiled, elm barrel hoops, at $7.25 per thousand. The petition was in two counts. Upon trial before a jury, the respondent recovered a judgment on the second count of its petition in the sum of $507.50, whereupon defendant appealed to the St. Louis Court of Appeals on the short form, and the cause has been transferred to this court. Both parties have filed briefs in this court, thus eliminating the question of the jurisdiction of this court to determine the case.

Respondent insists upon its contention that appellant's abstract is defective in several particulars, and in its brief claims, among other things, that as no motion for new trial is copied in the bill of exceptions, contained in appellant's abstract, there are no exceptions presented to this court for review. In the abstract of the bill of exceptions we find the following: "And afterwards, to wit, upon the 18th day of November, A. D. 1909, at the same term of court and within four days after the rendition of said verdict, defendant filed its motion for a new trial, which said motion is in words and figures as follows, to wit: (See ante, pp. 17-18)." The motion for new trial is set out in full in the abstract of the record proper at pages 17 and 18. In the case of State ex rel. v. Leichtman, 146 Mo. App. 295, 130 S. W. 94, we said: "The appellant, in his abstract of the record, has copied the motion for new trial supposed to have been filed in the case; but the motion for new trial is not a part of the record proper, and the only repository provided by the law for its preservation is the bill of exceptions." In an early case, a motion for a new trial was in fact filed; but it was set out in the record proper, and reference made thereto in the bill of exceptions by citing the page on which it would be found. It was held that the exceptions could not be considered, as the motion for new trial was not a part of the record...