Shemwell v. McKinney

• Decision Date: 03 July 1908
• Parties: SHEMWELL v. McKINNEY.
• Court: Missouri Supreme Court

114 S.W. 1083

214 Mo. 692

SHEMWELL v. McKINNEY.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. APPEAL AND ERROR (§ 506) — RECORD — SUFFICIENCY.

The Supreme Court acquires no jurisdiction of an appeal, where the abstract of the record proper does not show nor state the substance of an affidavit for an appeal.

2. APPEAL AND ERROR (§ 511) — RECORD — SUFFICIENCY — FILING OF BILL OF EXCEPTIONS.

Nothing can be considered on appeal but the record proper, where the abstract fails to show that the bill of exceptions was filed in time, or an order of record granting leave to file it in vacation.

Appeal from Circuit Court, Ripley County; Samuel Davis, Special Judge.

Suit by K. K. Shemwell against Thomas A. McKinney. From the judgment, defendant appeals. Appeal dismissed.

This suit was brought in the circuit court of Ripley county, and had for its object quieting the title to certain real estate described in the petition, which was in the usual and approved form. The answer was quite lengthy and set up various defenses, all of which were demurred to by the plaintiff, excepting the plea of the 10 and 30 years' statutes of limitation. The demurrer was sustained, and the respondent declined to plead further and went to trial upon the question of limitation. A trial was had, and, after respondent had introduced all his evidence, he took a nonsuit as to a portion of the land sued for, and recovered judgment for a part of the balance sued for, while the judgment for the remainder was for the appellant. Appellant has appealed in the cause to this court.

Charles D. Yancey, for appellant. Jno. M. Atkinson, for respondent.

WOODSON, J. (after stating the facts as above).

The abstract of the record proper does not show an affidavit for an appeal in this cause, nor does it state the substance of any such an affidavit. That omission prevents this court from acquiring jurisdiction of the cause. State ex rel. v. Broaddus, 210 Mo. 1, 108 S. W. 544; Insurance Co. v. Hurst, 129 Mo. App. 627, 108 S. W. 575; Greenwood v. Parlin et al., 98 Mo. App., loc. cit. 408, 72 S. W. 138; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542. Nor does the abstract of the record proper show that the bill of exceptions was filed in time, or an order of record granting leave to file it in vacation.

This failure would prevent us from considering anything but the record proper, even though we had jurisdiction to hear the cause; but, as we have no jurisdiction thereof, as before...