State v. Leichtman

• Decision Date: 07 July 1910
• Citation: 130 S.W. 94,146 Mo. App. 295
• Parties: STATE ex rel. WAGGONER v. LEICHTMAN.
• Court: Missouri Court of Appeals

130 S.W. 94

146 Mo. App. 295

STATE ex rel. WAGGONER v. LEICHTMAN.

Springfield Court of Appeals. Missouri.

July 7, 1910.

Motion to Set Aside Judgment Denied July 19, 1910.

1. EXCEPTIONS, BILL OF (§ 9)—MOTION FOR NEW TRIAL—"DIRECTION TO CLERK TO COPY MOTION."

The reference in appellants' bill of exceptions, that within a certain time after the trial of the cause a motion for a new trial was filed, as shown by entry of record at the time as appears on certain pages of the abstract, to the overruling of which the appellants excepted, did not amount to such a "direction to the clerk to copy the motion" for a new trial as is contemplated by Rev. St. 1899, § 866 (Ann. St. 1906, p. 815), providing that, if the bill of exceptions shall contain a direction to the clerk to copy the motion, and the same is copied, into the record, the motion need not be copied or set forth in the bill of exceptions.

2. APPEAL AND ERROR (§ 528)— BILL OF EXCEPTIONS —MOTION FOR NEW TRIAL.

A motion for a new trial is not a part of the record proper, and to make it such it must be included in the bill of exceptions, if it is to be reviewed by the appellate court.

3. APPEAL AND ERROR (§ 528)—MOTION FOR NEW TRIAL—BILL OF EXCEPTIONS.

As required by Rev. St. 1899, § 866 (Ann. St. 1906, p. 815), if a motion for a new trial is not contained in the bill of exceptions, or if the bill of exceptions does not contain a direction to the clerk to copy it into the record, it does not become a part of the record, and cannot be considered by the appellate court, though it is in fact contained in the appellants' abstract of the record.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Proceeding by the State, on the relation of G. E. Waggoner, against Adolph Leichtman. Judgment for plaintiff, and defendants appealed to the St. Louis Court of Appeals, whence the appeal was transferred to this court. Affirmed.

Duncan & Bragg, for appellants. S. H. McCarty and Ward & Collins, for respondent.

COX, J.

Action for damages upon attachment bond, trial by jury, verdict for plaintiff for $95, and defendant has appealed.

Plaintiff insists that the errors complained of in this case cannot be reviewed by this court, for the reason that the motion for new trial is not preserved in the bill of exceptions. The motion for new trial is not copied in the bill of exceptions, nor is there any direction therein for the clerk to copy the same in the transcript. The only reference to the motion for new trial in the bill of exceptions is the following: "Thereafter, and at the same term, on the ____ day of September, 1908, and within four days after the trial of said cause, the defendants filed their motion for a new...