Holloway v. City of Moberly

Opinion by Philips, P. J. This is an action to recover damages against the city [554] of Moberly, a municipal corporation, for the injuries alleged to have been sustained by plaintiff, on account of defendant’s neglect to keep its streets in repair. The plaintiff recovered judgment for five hundred dollars, from which the defendant appealed. The only errors complained of here are as to matters of evidence and instructions given by the court. These are matters which can only be brought to the attention of this court by being preserved in the bill of exceptions. The record shows that the defendant, instead of filing its bill of exceptions in term time, took leave to file it in vacation, and within thirty days from the tenth day of July, 1888. The record shows that the bill of exceptions was not filed until the tenth day of August, 1883. The statute (section 3126, Revised Statutes), prescribes, that “the time within which an act is to be done shall be computed by excluding the first day and including the last — if the last be Sunday it shall be excluded.” It is, therefore, apparent that the defendant did not file its bill of exceptions within the thirty days prescribed ; and it being in vacation, it stands as no bill of exceptions, in contemplation of law. Ellis v. Andrews, 25 Mo. 327; Hoffman v. Frank, 52 Mo. 542: The Eau Claire Co. v. Howard, 76 Mo. 517. In addition to this, the appellant has failed to comply with the rules of this court in filing an abstract of the record. Its whole complaint, as just stated, goes to matters of evidence and the instructions, and yet, in what purports to be an abstract, not a word of evidence or a single instruction is given. Perceiving no errors in the record proper before us, the judgment of the circuit court is affirmed. All concur.