The State of Missouri ex rel. Bush v. Lusk

• Decision Date: 07 April 1902
• Citation: 67 S.W. 711,93 Mo.App. 680
• Parties: THE STATE OF MISSOURI ex rel. ANTHONY BUSH, Appellant, v. WILLIAM LUSK et al., Respondents
• Court: Kansas Court of Appeals

67 S.W. 711

93 Mo.App. 680

THE STATE OF MISSOURI ex rel. ANTHONY BUSH, Appellant, v. WILLIAM LUSK et al., Respondents

Court of Appeals of Missouri, Kansas City

April 7, 1902

Appeal from Cooper Circuit Court.--Hon. Jas. E. Hazell, Judge.

AFFIRMED.

Judgment affirmed.

W. G. & G. T. Pendleton for appellant.

Filed brief on merits.

C. D. Corum for respondents.

OPINION

BROADDUS, J.

This is a proceeding by mandamus against the defendants, comprising the board of directors of School District No. 6, townships 45 and 46, range 18, Cooper county, to compel them to recognize certain territory as part of said district, and to include the names of certain colored children in their school enumeration for the scholastic year of 1901-02, and to establish and maintain a colored school in said district for said scholastic year.

On the twenty-eighth of October, 1901, relator filed his petition asking for a writ of mandamus, on which day the court issued an alternative writ in the usual form; to which the respondents, on the fourth day of November following, made return putting in issue all the allegations of the writ except the admission that they constituted the board of directors for said school district. At the term of court then pending, the court heard the case and made a special finding, rendering judgment thereon from which the relator appealed. No exceptions were taken by relator to the action of the court; and no bill of exception made out and signed by the judge was ever filed. The relator has copied the special finding of facts and is proceeding upon the assumption that it is a part of the record proper in the case.

We know of no law that makes the special finding of the facts of a case a part of the record proper. The only way to get it into the record is to except to the finding and include both the finding and the exceptions in a bill in the usual way. Section 695, Revised Statutes 1899, was devised for the very purpose of giving a party to the suit the benefit of excepting to the decision of the court upon facts there found to exist. We are therefore not authorized to review the finding of the court upon the facts, and can not predicate any opinion upon that part of the case.

As we find no error in the record proper, the cause is affirmed. All concur.