Turney v. Ewins

ELLISON, J. — Plaintiff is an architect and brought this action to recover for services he claims to have rendered the defendant. The judgment in the trial court” was for plaintiff. Plaintiff has asked in his brief that the appeal be dismissed on account of defective abstract filed by defendant ; in that it did not set out or' recite that a judgment was rendered, or that a bill of exceptions was filed, or that time was extended for filing. Afterwards, defendant filed a supplemental abstract showing these things and plaintiff thereupon asks us to strike such last abstract from the files. Under the rulings of the [622] Supreme Court an appellant may so supplement Ms defective abstract at any time before tbe cause is submitted. Lane v. Railroad, 132 Mo. 11; Ricketts v. Hart, 150 Mo. 67. But such supplemental abstract, of course, must be such that when taken with the principal abstract the case will be abstracted as contemplated by the statute and the rules of court. In the present instance the original abstract was not only deficient in the matters above stated, but it is also deficient in that it is not made to appear that any motion for new trial was filed. The supplemental abstract fails to remedy this. There is a statement in the bill of exceptions that such motion was filed, but the filing of a motion for new trial is a matter of record proper and is not evidenced in the bill of exceptions. It has no place in the bill of exceptions. Hill v. Combs (not yet reported); Crossland v. Admire, 149 Mo. 650; Lawson v. Mills, 150 Mo. 428; Western Storage Company v. Glasner, 150 Mo. 426. The action of the court in sustaining or overruling a motion for new trial is a matter of exception and the bill of exceptions properly shows, indeed must show, a motion for new trial and that it was acted on and exceptions saved. But the evidence of the filing of such motion, under the rulings aforesaid, must be bad in the record proper. Matters of mere exception belong to the bill of exceptions and can not be proven by recitation in the record. Nichols v. Stevens, 123 Mo. 96, 119. On the other band, matters of the record proper can not be proven by recitation in the bill of exceptions. Authorities supra. We therefore have no motion for new trial which disposed of the matters of exception complained of, and not finding any error in the record we affirm the judgment. All concur.