In re Boeckenkamp Estate

JOHNSON, J. Plaintiff appealed from a judgment in the circuit court in favor of defendant and brought the case here on a transcript of the judgment and order of appeal. It was set for hearing in this court on April 4,1907. On the 18th day of March, defendant was served by plaintiff with an abstract of record which, afterwards, was filed in this court. Aside from the recitals in the bill of exceptions, the abstract failed to show the filing and overruling of the motion for new trial and the filing of the bill of exceptions. On March 28th defendant 17 filed a brief in which he asked for a dismissal of the appeal on the ground that “the abstract of record made by appellant fails to show that the bill of exceptions was filed.” On April 2nd—two days before the cause was set for hearing—plaintiff, without leave of court, filed with the clerk a supplemental abstract, supplying the jurisdictional facts omitted from the original. It has been held repeatedly by this court and by the Supreme Court that the filing of the bill of exceptions cannot be proved by the recitals of that instrument, but must be made to appear by record entry. And, further, it has been held that an appellant should not be permitted, as a matter of right, to correct jurisdictional defects in the original abstract in a supplemental abstract filed out of time. We held in the case of Redd v. Railway, 122 Mo. App. 93, that leave to make such amendment might be granted under proper circumstances for good cause shown and on reasonable terms, but would not be given in the absence of a proper showing. The same view was expressed by the Supreme Court in Harding v. Bedoll, 202 Mo. 625; 100 S. W. 638. The failure of plaintiff to show good cause for the existence of these manifest defects and to obtain our permission to cure them by amendment requires us to consider the cause as though no motion for new trial and bill of exceptions had been filed therein; Thus considered, we find no error on the face of the record proper and, accordingly, the judgment is affirmed. All concur.