Sguares v. Peters

• Decision Date: 09 April 1918
• Docket Number: No. 18926.,18926.
• Citation: 202 S.W. 530
• Parties: SGUARES v. PETERS et al.
• Court: Missouri Supreme Court

202 S.W. 530

SGUARES v. PETERS et al.

No. 18926.

Supreme Court of Missouri, Division No. 2.

April 9, 1918.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Action by Marcus G. Sguares, administrator of Gost Sguares, deceased, against Fred Peters and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Ernest C. Dodge, of St. Louis, for appellant. Watts, Gentry & Lee, of St. Louis (G. A. Orth, of New York City, of counsel), for respondents.

WILLIAMS, J.

This is an action by an administrator to recover damages for death resulting from negligence. The death is alleged to have been caused by the flying pieces from an emery wheel which broke while being operated by the deceased. The negligence alleged was the failure of respondents to properly place guards about the wheel so as to protect the operator from flying pieces in the event it should break. A trial was had before a jury in the circuit court of St. Charles county, Mo., which resulted in a verdict and judgment for the defendants. Thereupon plaintiff duly appealed to this court.

We have examined appellant's assignment of errors, but find no matter of error which would work a reversal of the judgment. The above statement, however, is made merely as a passing statement, because upon an examination of the record before us we find that it is in such condition as to preclude a discussion of the errors assigned.

The only errors assigned are such as are required to be preserved by bill of exceptions duly filed in the court below. It does not appear from the abstract of the record proper, nor in fact from any part of the record before us, that the bill of exceptions in this case was duly filed in the circuit court. Rule 32 of the court, adopted December 10, 1912 (see rules of this court In 243 Mo. vii, 169 S. W. xi), provides:

"Hereafter no appellant need abstract record entries evidencing his leave to file or the filing of a bill of exceptions. It shall be sufficient if his abstract state the bill of exceptions was duly filed."

That rule was adopted for the purpose of relieving appellants from the burden of abstracting record entries, showing the filing, etc., of the bill of exceptions, and providing that it would be sufficient in that regard if his abstract of the record should state that the bill of exceptions was duly filed. The present abstract does not even come up to the standard set by the above-quoted liberal rule. Unless the filing of the bill of...