State v. Mueller

• Decision Date: 23 May 1921
• Docket Number: No. 13787.,13787.
• Citation: 230 S.W. 349
• Parties: STATE v. MUELLER.
• Court: Missouri Court of Appeals

230 S.W. 349

STATE v. MUELLER.

No. 13787.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Appeal from Circuit Court, Henry County; C. A. Calvird, Judge.

"Not to be officially published."

Richard Mueller was convicted of violating the local option law, and appeals. Affirmed.

John A. Gilbreath, of Clinton, for appellant.

Floyd Sperry, of Clinton, for the State.

PER CURIAM.

Defendant was convicted of violating the local option law and he has appealed. On the 5th day of February, 1920, he filed in this court a certified copy of the record entry of the judgment appealed from together with the order granting the appeal. On July 29, 1920, he filed a printed abstract of the record and his brief. On February 19, 1921, respondent filed its brief, duly served, wherein the attention of the court was timely and properly called to the fact that the abstract of the record proper, as shown by the printed abstract of the record, fails to show that the bill of exceptions was signed and ordered filed by the trial judge, or that any bill of exceptions was filed in the cause, and that the record proper does not contain any statement that the bill of exceptions was duly filed as is permitted by rule 26 of this court (169 S. W. xxiii). After the case was argued and submitted, appellant, without leave of court, lodged in the clerk's office what is claimed to be a complete transcript of the record and bill of exceptions in the cause. It is claimed that this transcript shows the matter omitted in the record proper in the printed abstract of the record.

We find the record proper as shown by the `printed abstract to be in the condition suggested by the respondent, and therefore under the circumstances there is nothing before the court except the record proper. Brumley v. Thornsberry, 226 S. W. 624; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Wallace v. Libby, 231 Mo. 341, 132 S. W. 665; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542; Parkyne v. Churchill, 246 Mo. 109, 151 S. W. 446. It is true that the bill of exceptions recites that it was signed and made a part of the record, but this does not help the appellant, for the bill of exceptions cannot prove itself. Wallace v. Libby, supra; Pennowfsky v. Coerver, supra; Parkyne v. Churchill, supra; State v. Morgan, 268 Mo. 265, 187 S. W. 54; Wank v. Peet, 190 S. W. 88.

We cannot consider the paper lodged in the clerk's office and give it the effect of a supplemental or amended abstract. Such an abstract could not have been filed without leave nor leave be granted "after the opposite party has served his brief or other writing calling attention to the defect." Karcher v. Jackson, 217 S. W. 48, 49; ...