Reed v. Moss

• Decision Date: 26 May 1914
• Citation: Reed v. Moss, 258 Mo. 172, 167 S.W. 523 (Mo. 1914)
• Parties: OLLIE M. REED et al., Appellants, v. SAMUEL MOSS et al
• Court: Missouri Supreme Court

167 S.W. 523

258 Mo. 172

OLLIE M. REED et al., Appellants, v. SAMUEL MOSS et al

Supreme Court of Missouri, Second Division

May 26, 1914

Appeal from Jasper Circuit Court. -- Hon. H. L. Bright, Judge.

Affirmed.

J. B McGilvray and R. A. Mooneyham for appellants.

J. D Harris for respondents.

FARIS J. Walker, P. J., and Brown, J., concur.

OPINION

FARIS, J.

This is an action to determine interest to certain lands in Jasper county. Upon a trial in the circuit court of that county, appellants here, who were plaintiffs below, were cast, and have appealed, following the usual procedure.

Respondents strenuously contend that there is no exception shown by the record to the action of the court below in overruling appellants' motion for a new trial, and that therefore there is nothing before us for review but the record proper. This contention has been the source of much trouble in this case. It was made upon a prior hearing of the case, but in such wise as that, after the most painstaking examination, we were not able to reconcile the attack made with the facts shown, apparently in a proper way, by the solemn record, and so an opinion was filed reversing and remanding the case with directions. Thereafter, upon a showing made by respondents in their motion for a rehearing, such a condition was made to appear as induced us to have sent up to us the original bill of exceptions as filed in the office of the clerk of the circuit court; whereupon the motion for a rehearing was sustained.

The actual facts bearing upon the contention made in this behalf by the respondents, are shown by the below excerpt from the original bill of exceptions, which embraces all that this bill shows as to the motion for a new trial and the filing and overruling thereof, to-wit:

"On the 18th day of December, 1909, the court made the following entries upon the docket: Motion for new trial filed. Motion for new trial overruled. Affidavit for appeal filed. Docket fee of $ 10 deposited. Appeal granted to the Supreme Court. Appeal bond in the sum of $ 500 to be filed and approved by the clerk within ten days after the adjournment of present term of court. Leave to plaintiff to file bill of exceptions on or before third day of February, 1910, term of court. But in fact no motion for a new trial was filed on said day, and no affidavit for appeal was filed on said day, nor during said term of court; but on the 20th day of December, 1909, two days after the final adjournment of said term of court, a motion for a new trial and affidavit for appeal were filed with the clerk of this court in vacation, which said motion for new trial was as follows:"

This excerpt shows two things: (a) that no exceptions were saved to the action of the court in overruling the motion for a new trial, and (b) that such motion was actually filed two days after the court adjourned for the term. [Reed v. Bright, 232 Mo. 399.]

Under the repeated rulings of this court, the saving of exceptions to the action of the trial court in overruling the motion for a new trial is a necessary condition precedent to a consideration here of the bill of exceptions. [Abbott v Gillum, 146 Mo. 176, 47 S.W. 1067; State v. Luttrell, 136 Mo. 25, 37 S.W. 1132; State v. Swan, 234 Mo. 270, 136 S.W. 711; State ex rel. v....