Silberberg v. Gitenstein

• Decision Date: 03 December 1912
• Citation: 168 Mo. App. 399,151 S.W. 983
• Parties: SILBERBERG v. GITENSTEIN.
• Court: Missouri Court of Appeals

151 S.W. 983

168 Mo. A. 399

SILBERBERG v. GITENSTEIN.

St. Louis Court of Appeals. Missouri.

December 3, 1912.

1. APPEAL AND ERROR (§ 532)—BILL OF EXCEPTIONS —NECESSITY—MOTIONS.

The ruling on a motion to affirm the judgment of a justice of the peace for failure to give notice of the appeal cannot be reviewed, unless the motion and an exception to the ruling thereon is preserved by a bill of exceptions.

2. APPEAL AND ERROR (§ 297)—REVIEW— MOTION FOR NEW TRIAL.

An adverse ruling on a motion to affirm the justice's judgment cannot be reviewed, unless a motion for new trial or a rehearing appears in the bill of exceptions.

3. APPEAL AND ERROR (§ 305)—EXCEPTION BELOW—NECESSITY.

Even where there has been a motion for new trial or rehearing, the denial thereof is not open to review, unless there has been an exception to the ruling.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by M. Silberberg against Israel Gitenstein. Judgment for plaintiff, and defendant appeals. Affirmed.

Felix Cornitus, of St. Louis, for appellant. Henry H. Furth, of St. Louis, for respondent.

NORTONI, J.

This cause originated before a justice of the peace, and defendant prosecuted an appeal from the judgment there rendered against him to the circuit court. Two terms of court having elapsed after appeal was perfected, plaintiff moved an affirmance of the judgment of the justice for want of notice of the appeal, as it is said no such notice was given. On hearing the court sustained this motion, and gave judgment for the plaintiff affirming the judgment of the justice. It is from this judgment of the circuit court on plaintiff's motion for an affirmance because of the failure to give notice of the appeal from the justice that the present appeal is prosecuted.

The record here is in such condition as precludes our right of review. Though a bill of exceptions was made and filed in due time and appears to be allowed and signed by the judge, there is no exception whatever to be found therein. The question which it is sought to have reviewed here arises wholly on the motion to affirm the judgment of the justice, and there appears to have been no exception saved to the ruling of the court on that motion. Mere motions filed in a cause are not part of the record proper, but are matters of exception which themselves, together with an exception to the ruling of the court thereon, must be preserved in the bill of exceptions in order to have the ruling on such...