Spangler v. Benz

• Decision Date: 19 January 1925
• Parties: WILLIAM M. SPANGLER, Respondent, v. FRED A. BENZ and MARY L. ANDREWS, FRED A. BENZ, Appellant.
• Court: Kansas Court of Appeals

267 S.W. 943

219 Mo.App. 31

WILLIAM M. SPANGLER, Respondent, v. FRED A. BENZ and MARY L. ANDREWS, FRED A. BENZ, Appellant.

Court of Appeals of Missouri, Kansas City

January 19, 1925

Appeal from the Circuit Court of Pettis County.--Hon. Dimmitt Hoffman, Judge.

AFFIRMED.

Judgment affirmed.

Claude Wilkerson and Lawrence Barnett for respondent.

Mark A. McGrider and Fred A. Benz for appellant.

OPINION

PER CURIAM:--

This is a suit to recover the sum of $ 600 alleged to be due from the defendants Benz and Andrews for certain real estate conveyed to Benz by Mary L. Andrews for and on behalf of plaintiff. There was a finding and judgment for plaintiff, and defendant Benz has appealed.

Respondent has filed motion to affirm the judgment, and it is manifest the same should be sustained. The abstract of the record proper does not show anything but the amended petition and an answer. It does not show the filing of a motion for new trial or in arrest, or that a bill of exceptions was signed or filed. [Poshek v. Marceline Coal and Mining Co., 231 S.W. 70.] Nor does it show the judgment appealed from, nor any order allowing appeal. Such record is fatally defective. [Orr v. Russell, 240 S.W. 1096; Potts-Turnbull Adv. Co. v. Gatchell, 236 S.W. 1078.] The short form transcript of the clerk may possibly cure some of these defects, notably as to the judgment and the fact that a motion for new trial of some kind was filed. [State ex rel. v. Little River Drainage District, 271 Mo. 429; Monroe v. Chicago, etc., R. Co., 219 S.W. 68, 69.] But the others cannot be so cured, especially as no motion for new trial is shown whatever. The document certified to this court by the circuit clerk, as being the only instrument or document filed as and for a bill of exceptions, is merely a transcript of the evidence and nowhere contains any motion for new trial or in arrest. Consequently, no matters of exception can be reviewed, but we must confine ourselves to the record proper, or that much of it at least as is before us. There is nothing on the face of the record proper to disclose any defect or invalidity in the judgment. Hence it must be, and is, affirmed.