Westheimer v. McInerny

• Decision Date: 07 April 1902
• Citation: 67 S.W. 725
• Parties: WESTHEIMER et al. v. McINERNY et al.
• Court: Missouri Court of Appeals

67 S.W. 725

WESTHEIMER et al. v. McINERNY et al.

Court of Appeals of Kansas City, Missouri.

April 7, 1902.

APPEAL — BILL OF EXCEPTIONS — RECORD — VERIFICATION.

1. An appeal will be dismissed where the record fails to show that a bill of exceptions was filed.

2. An appeal will be dismissed where there is no abstract nor record, except appellant's printed book, styled "Record," purporting to have been signed by the judge, but not verified as the law directs.

Appeal from circuit court, Buchanan county; W. K. James, Judge.

Action by Ferdinand Westheimer and others against Mary McInerny and others. From a judgment for plaintiffs, defendants appeal. Motion by plaintiffs to dismiss the appeal. Sustained.

J. B. O'Connor and R. A. Brown, for appellants. Chas. M. Street, for respondents.

PER CURIAM.

The respondent has filed a motion herein to dismiss the appeal for three assigned causes, only two of which it is necessary to consider. These are as follows: "First, because the appellants have filed no bill of exceptions in this case; second, because the record filed by the appellants herein does not set out a bill of exceptions as having been filed that is sufficiently identified." There is nothing in the record to show that a bill of exceptions was filed; consequently the motion must be sustained, on the first ground assigned. This question has been so often determined by this court that it is not thought necessary to cite any authorities on the question. There is no certificate of the clerk to any paper filed in the case; neither is there an abstract, nor a record of any kind. It is true, the appellants have filed a printed book of 118 pages, but it is not verified as the law directs. And while the appellants style this book as the "Record," calling it a record does not make it such. It is true that it purports to have been signed by the judge, but this is not verified by the clerk, or in any other manner. It does not comply with the rule as held in Reno v. Fitz Jarrell, 163 Mo. 411, 63 S. W. 808.

Motion to dismiss sustained.