Sturdivant v. Watkins

• Decision Date: 31 October 1870
• Parties: ROBERT STURDIVANT, Respondent, v. N. W. WATKINS et al., Appellants.
• Court: Missouri Supreme Court

47 Mo. 177

ROBERT STURDIVANT, Respondent,

v.N. W. WATKINS et al., Appellants.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Second District Court.

Jones & Davis, for respondent.

Ewing & Holliday, for appellants.

WAGNER, Judge, delivered the opinion of the court.

There is nothing saved in the bill of exceptions in this case which would authorize us to review the judgment of the court below. Neither the rulings of the court excepted to nor the instructions are incorporated into the bill, so as to become a part of the record. Certain instructions are copied in the transcript with the marginal words “given” and “not given,” but what action the court took in reference to them is not stated by anything appearing in the bill of exceptions. “Instructions should regularly be incorporated in the bill of exceptions. Although they may appear among the papers in the cause and be spread upon the transcript, they will be disregarded unless they form a part of the bill of exceptions.” (State v. Shehane, 25 Mo. 565.)

Again, what purports to be the testimony given upon the trial is not certified to by the judge, as the law requires. He says: “The testimony in the above cause was taken by the plaintiff in writing at the time, and was read and appeared correct, and placed with the papers in the case, but is now mislaid or lost. If the said testimony is found, the clerk will transcribe and forward with the record in this cause.” And this is signed by the judge as his attestation to the bill of exceptions. He does not certify that the evidence as written out by the plaintiff was correct, but that it appeared to be correct; nor is there any statement to show that the evidence here sent up was the evidence and all the evidence in the cause. The judge's direction is to the clerk to transcribe and send up certain papers if found, without knowing whether they were correct, or whether the clerk would find all, or send all up if found. It would be a misnomer to call such a paper a bill of exceptions, and it can hardly be necessary to make the remark that if parties desire their cases reviewed in this court, they should pay some attention to the manner in which the record is made up.

Judgment affirmed.

The other judges concur.