Allen v. Funk

SMITH, P. J. — This is an action which was brought to recover damages for an assault and battery. There was a trial and judgment for defendant and plaintiff appealed. During the vacation of the court and on January 31, 1900, the time for filing the bill of exceptions was extended to Eebruary 10,1900. The abstract of the record does not show either the indorsement of the clerk on the bill of the fact of filing nor any entry made by him in the records of the court to that effect. It is true, the bill of exceptions itself states that plaintiff “within the time heretofore allowed presents this his [462] bill of exceptions praying that it be signed, sealed and made a part of the record herein which is done accordingly this February 8, 1900.” This certificate of the judge does not suffice. It is now the well-settled rule of appellate practice that where a bill of exceptions is filed in vacation the record must show either the indorsement of the clerk on the bill of the filing or there must be a record entry of the fact made by him. Williams v. Williams, 26 Mo. App. 408; Lafollette v. Thompson, 83 Mo. 199; Fulkerson v. Houts, 55 Mo. 302; Ferguson v. Thacher, 79 Mo. 511. Both of these requisites are wanting here. There is therefore-nothing before us for review exeept the record proper in which there seems to be no error. It follows that the judgment must be affirmed. All concur.