Reno v. Fitz Jarrell

• Decision Date: 21 May 1901
• Citation: 63 S.W. 808,163 Mo. 411
• Parties: RENO et al. v. FITZ JARRELL et al.
• Court: Missouri Supreme Court

63 S.W. 808

163 Mo. 411

RENO et al. v. FITZ JARRELL et al.

Supreme Court of Missouri, Division No. 2.

May 21, 1901.

APPEAL AND ERROR — BILL OF EXCEPTIONS — DIMINUTION OF RECORD.

Where the recital in the record of a bill of exceptions merely refers to it as signed, sealed, and filed, and "fully set out in the foregoing transcript," and the transcript does not show where the bill begins or ends, and the signature of the judge is lacking, the appeal presents nothing for review except the record proper.

On Motion for Rehearing.

Under Sup. Ct. Rule No. 4 (16 S. W. v.), providing that no suggestion of diminution of record in civil cases will be entertained by the court after joinder in error, except by consent of parties, the court should not entertain such a suggestion, though a fatal defect in the record, not pointed out by counsel, is discovered by the court after submission.

Appeal from circuit court, Daviess county.

Action by Ellen Reno and others against Catharine M. Fitz Jarrell and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Hicklin & Hicklin, for appellants. Alexander & Allen, for respondents.

SHERWOOD, J.

After the motions for new trial and in arrest were filed and denied, and after the record shows affidavit for appeal filed and granted, and bond for appeal given, then occurs these statements of record marked "1" and "2": "(1) And afterwards, to wit, on the 8th day of the regular September, 1897, term of said court, it being the 15th day of September, 1897, the following other proceedings were had in said cause, to wit: Ellen Reno et al., Plaintiffs, vs. Catharine Fitz Jarrell et al., Defendants. (2) Plaintiffs' bill of exceptions filed, which said bill of exceptions is signed and sealed by the court, and made part of the record herein; said bill of exceptions being fully set out in the foregoing transcript." The object of a recital in the record that a bill of exceptions has been filed is to authenticate the bill, and to identify it as the bill thus filed. There is nothing in record recital No. 2 to identify the bill. Whereabouts "in the foregoing transcript" is "said bill of exceptions fully set out"? The usual and correct formula for a record entry in regard to filing a bill is like this: "Now, on this 8th day of January, 1901, comes the plaintiff in the above-entitled cause, and by leave of court files herein his bill of exceptions, which bill of exceptions is in the words and figures following." Then follows the bill of exceptions, and at its close is something like this: "And the plaintiff in the above-entitled cause presents this his bill of exceptions to me, the undersigned judge, and asks that the same be signed, sealed, and...