Sprague v. Mathias

• Decision Date: 19 April 1910
• Citation: 148 Mo. App. 169,127 S.W. 668
• Parties: SPRAGUE v. MATHIAS.
• Court: Missouri Court of Appeals

127 S.W. 668

148 Mo. App. 169

SPRAGUE v. MATHIAS.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

1. APPEAL AND ERROR (§ 586) — ABSTRACT OF RECORD — SUFFICIENCY OF STATEMENT.

Under court rules 14 and 15 (123 S. W. vi), providing that, where a case is brought up by a full written transcript, the plaintiff in error shall deliver a copy of his abstract of the record to respondent, and file copies with the clerk, and that the transcript shall contain a complete index, and must set forth so much of the record as is necessary to a complete understanding of all questions presented for decision — that is, an abstract of the record proper, and all matters of exception — a statement containing no reference as to when a bill of exception was filed, no exceptions to rulings on evidence, or on instructions, or to overruling a motion for new trial save an exception to overruling the demurrer to the evidence at close of plaintiff's case, and no summary of pleadings except a reference to some of the counts in the petition, followed by a heading "Assignment of Errors," and then by the heading "Argument, Points, and Authorities," is not an abstract.

2. APPEAL AND ERROR (§ 270) — MOTION FOR NEW TRIAL — NECESSITY OF EXCEPTION.

Where no exception is saved to the overruling of a motion for new trial, neither proceedings at the trial nor errors not appearing in the record proper can be noticed.

3. APPEAL AND ERROR (§ 1133) — NONCOMPLIANCE WITH RULES — AFFIRMANCE OF JUDGMENT.

Where under court rules 14 and 15 (123 S. W. vi), there is no abstract in the record, the absence of which would authorize a dismissal of the appeal, and, in addition, there is a failure to except to the overruling of the motion for a new trial, and the judgment is sustained by the petition and in accordance with the issues, the judgment will be affirmed.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by J. L. Sprague against Lillian A. Mathias. From a judgment for plaintiff, defendant appeals. Affirmed.

P. P. Mason, for appellant. Joseph Barton, for respondent.

REYNOLDS, P. J.

This case is here on a full typewritten transcript filed in this court August 30, 1909, and is on the April, 1910, docket of our court. Rule 32 of our court (123 S. W. ix) makes the rules as amended July 20, 1909, take effect August 15, 1909, provided they shall not apply to cases on the docket for October, November, and December, 1909. Hence those rules govern the appeal in this case.

Rule 14 (123 S. W. vi) provides that all cases where a complete written or printed transcript is brought to this court in the first instance "the appellant or plaintiff in error (see rule 2 [123 Pac. v]) shall make and deliver to respondent a copy of his abstract of the record at least 30 days before the day on which the cause is set for hearing and file 6 copies thereof with the clerk of this court not later than the day preceding the one on which the case is set for hearing." This is substantially section 813, Rev. St. 1899 (Ann. St. 1906, p. 783), in so far as it requires an abstract when the case is brought up on full transcript. Rule 15 (123 S. W. vi) prescribes the requisites of an abstract. Among other things it must have a complete index, and must set forth so much of the record as is necessary to a full and complete understanding of all questions presented to the court for decision. That involves setting out all jurisdictional matters — an abstract of the record proper and of all matters of exception. Rule 21 (123 S. W. vii) provides that, on failure to comply with rules 12, 14, 15, 16, and 18, the court will dismiss the appeal or writ of error, or, at the option of the respondent, continue the cause. In the case before us there is no abstract whatever on file. There is what is labeled "Statement, Points, and Authorities for Respondent." That statement is in no sense an abstract. No reference is made in it as to...