Robertson v. Boyd

• Decision Date: 02 June 1902
• Parties: ROBERTSON et al. v. BOYD.
• Court: Missouri Court of Appeals

68 S.W. 976

ROBERTSON et al. v. BOYD.

Court of Appeals at Kansas City, Missouri.

June 2, 1902.

APPEAL—BILL OF EXCEPTIONS—FILING— RECORD.

Where no bill of exceptions was filed at the trial term and the record does not show leave granted to file such bill at a subsequent term, and there is nothing to show that a bill was filed within any time granted, though the bill returned on appeal recites that leave to file was granted, and the record proper shows no error, the judgment appealed from should be affirmed.

Appeal from circuit court, Johnson county; W. L. Jarrott, Judge.

Action by R. M. Robertson and others against Thomas H. Boyd. From a judgment for plaintiffs, defendant appeals. Affirmed.

James A. Kemper, for appellant. R. M. Robertson and S. J. Caudle, for respondents.

PER CURIAM.

This is an action on an account for attorney's fee. Plaintiffs had judgment in the circuit court. After having examined the briefs in this case on the questions presented, and having become satisfied that the judgment should be affirmed, since we did not discover that any error had been committed by the trial court materially affecting the merits of the controversy, we find that there was no bill of exceptions filed at the trial term. But it is stated in the bill of exceptions that upon saving exceptions to the overruling of the motions for new trial and in arrest the defendant took leave to file his bill of exceptions on or before June 10th thereafter. There should have been a record entry made of this leave, and it should have been shown by the abstract of the record proper outside of the bill of exceptions. But if it should be allowed that such statement of entry was intended to be a statement of the record proper, yet it appears that there were four other extensions of time, all properly abstracted; but there is nothing whatever to show that a bill was filed according to the leave granted by the last extension. There is a record that leave was given to file, but no record made in term time or in vacation, or even a certificate of the clerk in vacation, that a bill was ever filed. That such record entry must be shown in the abstract has been ruled time and time again. Butler Co. v. Graddy, 152 Mo. 441, 54 S. W. 219; Storage Co. v. Glasner, 150 Mo. 426, 52 S. W. 237; Lawson v. Mills, 150 Mo. 428, 51 S. W. 678. We therefore have no bill of exception, and the record proper shows no error.

The judgment is affirmed.