State ex rel. v. Wealaka Mercantile & Mfg. Co. v. Turner

• Decision Date: 16 May 1905
• Citation: 113 Mo. App. 53,87 S.W. 464
• Court: Missouri Court of Appeals
• Parties: STATE ex rel. WEALAKA MERCANTILE & MFG. CO. v. TURNER et al.

87 S.W. 464

113 Mo. App. 53

STATE ex rel. WEALAKA MERCANTILE & MFG. CO. v. TURNER et al.

St. Louis Court of Appeals. Missouri.

May 16, 1905.

APPEAL—NECESSITY OF JUDGMENT—ERRORS REVIEWABLE —PRESERVATION—BILLS OF EXCEPTION.

1. Under Rev. St. 1899, § 806, authorizing any party aggrieved by a judgment of the circuit court to appeal to the court having appellate jurisdiction "from any final judgment in the case," an appeal does not lie where no judgment is rendered.

2. The action of the court in giving a peremptory instruction is not reviewable on appeal, but is waived, unless the exception taken thereto is renewed as a ground for new trial.

3. In order to enable the appellate court to determine whether the ruling of the lower court in giving a peremptory instruction was brought to that court's attention in the motion for new trial, so as to authorize appellate review of the same, the motion for a new trial, or the copy thereof, must be included in the bill of exceptions.

Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.

Action by the state, on the relation of the Wealaka Mercantile & Manufacturing Company, against George M. Turner and others. From a determination in favor of defendants, plaintiff appeals. Dismissed.

J. H. Raney, for appellant. R. H. Davis and S. R. Durham, for respondents.

NORTONI, J.

This case was tried to a jury in the circuit court of Wayne county. At the conclusion of all of the evidence adduced on behalf of both plaintiff and defendants, the court peremptorily instructed the jury to return a verdict for the defendants in accordance with such instruction, and such verdict appears in the bill of exceptions before us. Upon an examination of the record, we find no judgment entered by the court on said verdict. Section 806, Rev. St. 1899, provided that: "Any party * * * aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal to the court having appellate jurisdiction * * * from any final judgment in the case." No such judgment appears in the record before us. There being no judgment, there could be no appeal therefrom. Sperling v. Stubblefield, 83 Mo. App. 266; Lyons v. Rollinson (Mo. App.) 82 S. W. 646; Silvey v. Sumner, 51 Mo. 199; Dale v. Copple, 53 Mo. 321.

The bill of exceptions on file here seems to be full, except the motion for new trial is not copied therein. There is a call for said motion in the bill, and a...