Simcoe Realty Co. v. Wm. J. Lemp Brewing Co.

• Decision Date: 30 November 1912
• Citation: 247 Mo. 29,152 S.W. 31
• Parties: SIMCOE REALITY CO. v. WM. J. LEMP BREWING CO. et al.
• Court: Missouri Supreme Court

152 S.W. 31

247 Mo. 29

SIMCOE REALITY CO. v. WM. J. LEMP BREWING CO. et al.

Supreme Court of Missouri, Division No. 1.

November 30, 1912.

Rehearing Denied December 24, 1912.

1. APPEAL AND ERROR (§ 502) — BILL OF EXCEPTIONS — CONTENTS — MOTION FOR NEW TRIAL.

The motion for new trial should be contained in the bill of exceptions.

2. APPEAL AND ERROR (§ 671) — RECORD.

If the abstract of the record does not contain a motion for new trial, only the record proper can be reviewed.

3. APPEAL AND ERROR (§ 635) — AFFIRMANCE — DEFECTIVE RECORD.

Where the abstract of the record does not contain a motion for a new trial, and no errors appear upon the record proper, judgment will be affirmed.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by the Simcoe Realty Company against the Wm. J. Lemp Brewing Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is an action in ejectment instituted in the circuit court of Jackson county by the plaintiff against the defendants to recover the possession of the west five feet of lot 187, in Ross & Scarritt's addition, an addition in Kansas City, Mo. The petition was in the usual form, and the answer admitted possession, sets up the statutes of limitations as a bar, and pleads an estoppel in pais, and asks that the rights and interest of the parties be ascertained and determined under the provisions of section 2535. R. S. 1909, same as section 650, R. S. 1899. The reply was a general denial. A trial was had, and a judgment was rendered in favor of the defendants, and the plaintiff appealed the cause to this court.

Karnes, New & Krauthoff and M. H. Winger, all of Kansas City, for appellant. Haff, Meservey, German & Michaels and S. D. Newkirk, all of Kansas City, and Edwards & Bryan, of New York City, for respondents.

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

1. At the outset of this case we are confronted with the contention of counsel for respondents (quote): "No motion for a new trial is preserved in the bill of exceptions, nor is there a call for one; therefore there is nothing but the record proper before the court." This contention is not controverted by counsel for appellant, but is conceded by counsel appearing in the circuit court of Jackson county and filing in the cause a motion to amend the bill of exception, filed therein, by inserting in said bill the motion for a new trial, which motion, over the objections and exceptions of respondents, was by the court sustained. After said amendment had been made, counsel for appellant presented to this court a certified copy of the record...