Bailey v. McWilliams

BEOADDUS, P. J. Defendant’s abstract of the record proper failing to show that he filed a motion for a new trial, we cannot consider the cause on its merits. There is a recital in his bill of exceptions that such motion was filed. Eecord recitals contained only in the bill of exceptions cannot be considered on appeal. [St. Charles v. Deemar, 174 Mo. 122; Machine Co. v. Crawford, 98 Mo. App. 319; Parry v. Coffee Co., 98 Mo. 409.] The objection is made that the petition shows that there were five defendants and the judgment is only against one of them. This is true, but the finding of the court as contained in the judgment appealed from shows that by an agreement of the parties entered into after the commencement of the suit, the interests of all the defendants except defendant McWilliams were adjusted; after which they had no further interest in the matter in litigation. No formal order of dismissal was made as to said defendants but no one was injured for want of such order. Appellant next contends that the judgment rendered was not authorized by the pleadings. Plaintiff [38] admits this to he true, but he insists that it was justified by the agreement referred to. The petition states a case in equity, viz: to cancel a certain deed executed by defendant McWilliams as agent of plaintiff, and the judgment against defendant is a money judgment. By the terms of the agreement the deed was recognized as valid, but it was agreed that part of the purchase-money from the grantee, which was in the hands of the clerk of the court, which was claimed by appellant as his commission for selling plaintiff’s land should ‘ ‘ await the judgment of the court. ’ ’ The judgment of the court was that it should be paid to the plaintiff. This was how it happened that the proceedings terminated in a money judgment, not against appellant but as to a fund. The appellant has no cause of complaint because by his agreement he invited the judgment. We can find nothing in the record proper to authorize a reversal. Affirmed. All concur.