Walls v. Tinsley

Decision Date30 January 1915
Docket NumberNo. 1169.,1169.
Citation173 S.W. 19
PartiesWALLS v. TINSLEY.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Pemiscot County; Frank Kelly, Judge.

Action by R. D. Walls against J. O. Tinsley. From a judgment for defendant, plaintiff appeals. Reversed and remanded, unless defendant remits the amount recovered on his counterclaim.

C. P. Hawkins, of Kennett, N. C. Hawkins, of Caruthersville, and W. R. Hall, of Kennett, for appellant. Ward & Collins, of Caruthersville, for respondent.

STURGIS, J.

The only thing filed by the respondent in this court is a motion to affirm the judgment, accompanied by a manuscript brief in support of the same. This motion asks for an affirmance on the ground that appellant's abstract of the record commingles the record proper and matters of exceptions, and makes no distinction as to what matters are record proper and what are preserved by the bill of exceptions. An examination of the appellant's abstract filed here shows that under the caption "Abstract of the Record" there appears the petition, the summons with the sheriff's return thereon, a motion for costs, defendant's answer, and plaintiff's reply. Then follows a bill of exceptions, and all proceedings had in the case, other than the pleadings, appear therein and nowhere else. The appeal is brought here by the short method, and a certified copy of the judgment and order granting the appeal, showing the date and term of court, are on file in this court. The bill of exceptions has no caption calling it by that name, but the opening clause, beginning with the general formula, "Be it remembered that this cause coming on to be heard in the above-entitled court on Saturday, August 2, 1913, being the regular July term of said court, before the Honorable Frank Kelly, the regular judge of said court, with the aid of a jury, the following proceedings were had, to wit," etc., unmistakably stamps it as a bill of exceptions. The certificate signed by the trial judge at the end thereof is such as is usual, and makes each and all the matters, judgments, orders, rulings, objections, and exceptions preceding it a part of the record in this case. The respondent's objection is that some of the proceedings shown by this bill of exceptions can only be shown by the record proper.

Under these facts the motion to affirm the judgment must be overruled. The only basis for a motion to affirm a judgment is the failure of the appellant to perfect his appeal in the manner and within the time prescribed by sections 2047, 2048, R. S. 1909, and the first of these sections requires the motion to affirm to be accompanied by and be based on a certificate of the clerk showing the matters there specified just as if nothing had been filed by the appellant in the appellate court. After appellant has perfected his appeal in due time by the short method, and has served and filed his abstract of the record, the respondent cannot, as is attempted here, have the judgment affirmed on motion, even if it be true, as respondent claims, that, "by reason of the defects in the purported abstract, this court can only look to the record proper to see if the judgment is one that can be rendered under the pleadings." A motion to affirm cannot serve the purpose of a printed brief in pointing out and raising the point that the abstract is so deficient that nothing but the record proper is before this court for review. Parkyne v. Churchill, 246 Mo. 109, 112, 151 S. W. 446. The matters which the respondent seeks to have brought to the attention of this court by his motion to affirm and manuscript brief in support of the same are such as properly belong in briefs printed and filed under rule 18 (169 S. W. xxii) of this court.

It is true that the proper and timely filing and overruling of the motion for new trial, the taking of an appeal, and the filing of the bill of exceptions are matters of record proper. It is not claimed, however, that the record in the trial court fails to show that these steps were duly and timely taken. All that respondent claims is that the appellant has so printed his abstract of the record as not to show these matters outside of the bill of exceptions. Rule 32 (169 S. W. xxiv) of this court expressly provides that when the appeal is by the short form, as in this case, the appellant need not abstract the record entries showing the steps taken to perfect the appeal or to file the bill of exceptions. A mere statement that the appeal was duly taken and the bill of exceptions duly filed is sufficient in the appellate court, unless the contrary is shown. The proviso to rule 15 (169 S. W. xxi) of this court is to the effect that it will be taken as sufficient if the abstract of the record (including the bill of exceptions) tends to show the filing in proper time of the motion for new trial, the motion in arrest, the affidavit for appeal, and the filing of the bill of exceptions; and that in challenging such matters it is not sufficient to merely state that the abstract does not show such steps to have been properly taken, but it must be shown that such steps were in fact not properly taken. These rules have made a radical departure from the former rulings of this and other appellate courts requiring that, in printing abstracts of the records, all these matters must be shown in detail, and matters of exceptions and record proper be kept separate, and that neither could preserve or show what properly belonged to the other. The authorities relied on by the respondent are not applicable to the present rules of appellate practice in this court. Under our rules, if the abstract of the record,...

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9 cases
  • The Belt Seed Co. v. Mitchelhill Seed Co.
    • United States
    • Missouri Court of Appeals
    • 16 Junio 1941
    ...S.W. 820; 55 C.J. 812, sec. 794; A. Franck-Philipson & Co. v. Hanna & Young Handle Co., 200 S.W. 718, 722, 723; Walls v. Tinsley, 187 Mo. App. 462, 466, 467, 173 S.W. 19, 21; Eversole v. Hanna, 184 Mo. App. 445, 449, 450, 171 S.W. 25, 27; St. Louis Brewing Ass'n v. McEnroe, 80 Mo. App. 429,......
  • Huskey v. Heine Safety Boiler Company
    • United States
    • Missouri Court of Appeals
    • 30 Enero 1915
  • Travers Co. v. Goldman
    • United States
    • Missouri Court of Appeals
    • 6 Noviembre 1923
    ...Co. v. Hunter, 99 Mo. App. 46, loc. cit. 56, 72 S. W. 484; Eversole v. Hanna, 184 Mo. App. 445, loc. cit. 449, 171 S. W. 25; Walls v. Tinsley, 187 Mo. App. 462, loc. cit. 467, 173 S. W. 19; El Paso Milling Co. v. Davis, 194 Mo. App. 1, loc. cit. 7, 183 S. W. 361; Brown v. Lead. & Zinc Minin......
  • State v. Chilton
    • United States
    • Missouri Court of Appeals
    • 6 Febrero 1918
    ...Filed July 26, 1917. W. J. Burrows, Circuit Clerk." This record would be sufficient under our rules in a civil case. Walls v. Tinsley, 187 Mo. App. 462, 173 S. W. 19. We are not inclined to let mere technicalities control; but when a statute commands it is not technical to observe. To disre......
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