Strong v. Strong

• Decision Date: 10 November 1919
• Docket Number: No. 13322.,13322.
• Citation: 216 S.W. 543
• Parties: STRONG v. STRONG.
• Court: Missouri Court of Appeals

216 S.W. 543

STRONG v. STRONG.

No. 13322.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

On Motion for Rehearing, December 1, 1919.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

"Not to be officially published."

Action by Vera Marie Strong against Louis L. Strong, Jr. From an order allowing plaintiff temporary alimony and suit money defendant appeals. Affirmed.

A. L. Perry, of Troy, Kan., and Randolph & Randolph, of St. Joseph, for appellant. Mytton & Parkinson, Barney E. Reilly, and W. B. Norris, all of St. Joseph, for respondent.

PER CURIAM.

This is an appeal from an order allowing temporary alimony and suit money. Respondent has called our attention to the fact that the record proper does not show that the bill of exceptions was signed by the judge or filed or made a part of the record.

This point is well taken. The record proper nowhere shows these things, but appellant insists that because following the signature of the judge to the bill of exceptions itself, appear the words: "Marked filed, July 15, 1909. E. 3. Cruse, Clerk, by Charles A. Redfern, D. C."—that there is a sufficient recitation in the record proper to show the filing of the bill of exceptions. However, there is nothing in the record proper to show that the judge signed the bill of exceptions, nor do we think that the words quoted are sufficient to show that the bill of exceptions was filed. It is apparent that these words are indorsed on the bill of exceptions itself. It has repeatedly been held that a bill of exceptions cannot prove itself. Pabst Brewing Co. v. Howard, 211 S. W. 720; Houston v. Malloney, 209 S. W. 565; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Keaton v. Weber, 233 Mo. 691, 136 S. W. 342.

There is another reason why we cannot consider the bill of exceptions in this case. Matters of record proper and exceptions are so commingled in the abstract that we are not able to distinguish one from the other. First appearing in the abstract is the petition, then a recitation as follows:

"Proceedings were then had as' shown by the following bill of exceptions, and pleadings and the record entries hereinafter set forth."

Then follows the style of the case, and under this in large letters, "BILL OF EXCEPTIONS." After this is shown various pleadings, motions, and rulings; then the testimony introduced. The abstract does not distinguish matters of exceptions from matters of record proper. For that reason the record is defective. Keaton v. Weber, supra; Barham v. Shelton, 221 Mo. 66, 70, 119 S. W. 1089.

After respondent in her brief called attention to the defects in the abstract of the record, appellant filed an additional abstract, attempting to correct such defects. It is well established that defects cannot be corrected in this manner without the consent of respondent. Hopper v. Fulbright, 174 Mo. App. 499, 160 S. W. 840; Harding v. Bedoll, supra, 202 Mo. 636, 100 S. W. 638; Everett v. Butler, 192 Mo. 564, 569, 91 S. W. 890; Barham v. Shelton, supra.

Finding no error in the record proper, the judgment is affirmed.

On Motion for Rehearing.

Appellant states in his motion for rehearing that everything appearing after the original petition to and including the signature of the judge to the bill of exceptiones is intended to be the bill of exceptions, and that the amended petition appears in the bill of exceptions for the reason that it was introduced in evidence. Nothing is said as to why the demurrer to the amended petition as amended by interlineation also appears in what appellant says is the bill of exceptions.

In order for the court to allow temporary alimony and suit money the petition...