State ex rel. Estes v. Gaither

• Decision Date: 30 April 1883
• Citation: 77 Mo. 304
• Parties: THE STATE ex rel. ESTES v. GAITHER et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 304

THE STATE ex rel. ESTES

v.GAITHER et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Scott Circuit Court.--HON. D. L. HAWKINS, Judge.

AFFIRMED.

W. R. Donaldson and Smith & Krauthoff for appellant.

Thoroughman & Valliant for respondent.

HOUGH, C. J.

This is an action against the defendants as sureties on an attachment bond. The bill of exceptions recites that the motion for a new trial was filed within four days after the trial, and was overruled by the court, but the transcript before us is otherwise silent upon the subject; and the question is presented, whether this court will consider the matters of exception presented for review, when the filing of the motion for a new trial and the action of the court thereon appear only in the bill of exceptions.

It has always been held in this State that the motion for a new trial is not part of the record proper and must be preserved by a bill of exceptions. It is also settled by the decisions of this court, that the action of the trial court on the motion for a new trial, is a matter of exception, and not of error, and it is accordingly held, that when the bill of exceptions fails to show that the action of the court in overruling the motion for a new trial was excepted to, this court will not review such action of the trial court. Hart v. Walker, 31 Mo. 26; Bateson v. Clark, 37 Mo. 34; State v. Marshall, 36 Mo. 403, 404. Now it is plain that if the action of the court in overruling the motion for a new trial is a matter of exception, such action cannot be regarded as belonging to the record proper, and must be preserved in the bill of exceptions. The correctness of this view is apparent when we consider that the only object of the motion for a new trial is to give the trial court an opportunity to review, or reconsider those rulings which do not constitute a part of the record proper, and that an adherence to such rulings, by overruling the motion, can, therefore, occupy no higher plane, or possess greater dignity than the original rulings during the progress of the trial.

We are also of opinion that while the filing of the motion is required by statute, (R. S., § 3536,) to be entered upon the minutes, and must, therefore, go upon the record, this does not make such filing a part of what is known as the record proper, and such filing and the date thereof are properly shown by the bill of exceptions. The record proper has been declared to consist of the petition, summons and...