Lucas v. Huff

SMITH, P. J. This is an action to recover one hundred dollars, but whether it was commenced before a justice of the peace or in the circuit court, the abstract nowhere informs us. It might have been brought in either of these courts. The abstract of the record proper consists of the petition or statement of the cause of action alone. It contains no answer, nor does it show that any such pleading was or was not filed in the cause. Nor is any mention therein made of any judgment, though we may infer from what purports to be a bill of exceptions that there was a judgment in the cause for the defendant. Nor does it therein appear that a motion for a new trial was filed and overruled, nor, that a bill of exceptions was filed at any time. St. Louis v. Boyce, 130 Mo. 572; Danforth v. Railroad, 123 Mo. 198; Jackson v. Ferguson, 76 Mo. App. 270; Hill v. Coombs, 92 Mo. App. 242. It is trae the so-called bill of exceptions itself recites that it was filed within the time allowed by the order of the court, but there is, as has been stated, no' entry on the record proper showing that fact. The case is that where the bill of exceptions is left to prove itself or to prove that it was filed and thus become such bill. This will not suffice, as has been repeatedly decided by all the appellate courts' of this State. Such a bill is no bill at all, and will be disregarded. But if the bill of exceptions had been filed and had thereby become a part of the record, it does not appear therefrom that the court gave an instruction in the nature of a demurrer to the evidence, although it appears from the plaintiff’s “statement of the case” that such was the fact. The [371] so-called bill of exceptions shows that before tbe evidence bad been concluded tbe defendant presented an instruction, in its nature a demurrer to tbe evidence, but at tbe instance of tbe plaintiff it was withdrawn for tbe purpose of allowing tbe latter to introduce further evidence, and accordingly be did introduce such further evidence; but it does not appear that tbe defendant again presented bis said instruction. It does not, therefore, appear that tbe court gave any such instruction or that tbe case was disposed of on a demurrer to the evidence. So far as appears, tbe verdict of tbe jury was for tbe defendant on tbe evidence without instructions. Tbe assignment of error to tbe effect that tbe court erred in giving an instruction in tbe nature of a demurrer to the evidence, can not, in any view of tbe case, be noticed by us. And as there is no bill of exceptions presenting tbe evidence there is nothing before us for review and consequently tbe judgment must be affirmed. Lawson v. Mills 150 Mo. 428; Walser v. Wear, 128 Mo. 652; Butler v. Graddy, 152 Mo. 441; Benedict v. Ass’n., — Mo. App. —; Shoenberg v. Heyer, 91 Mo. App. 389. All concur.