Webster v. Berry

NIXON, P. J. This case in its peregrinations reminds us of the much traveled Homeric hero who was buffeted and baffled on many climes and shores. The appellant was sued in his own neighborhood before a justice of the peace the result being a mistrial. He filed an affidavit against the inhabitants of the township. Thereupon, the case took another turn into another township, where, more fortunately for the plaintiff in the result, the jury returned a verdict against the defendant. Prom this the defendant appealed. He then filed an affidavit against the judge of the circuit court and the case was transferred from Barry county to Barton county, where a jury again rendered a verdict against the defendant. From that judgment, he took an appeal to the Kansas City Court of Appeals and the case has been transferred to this court. Owing to the defects, hereinafter referred to, in the abstract, and his failure, to comply with the rules, the appeal must be somewhat summarily disposed of. The respondent in his brief and argument call our attention to the fact that the abstract of the record in this case wholly fails .to comply with the requirements of the rules of this court. The only showing in the abstract of the record in this case as to the filing of the bill of exceptions is as follows: “Jesse Webster, Plaintiff, v. James Berry, Defendant. Record entry shows that the bill of exceptions in this case was filed with the. clerk of thes Barton county circuit court on the 18th day of October, 1909.” It is apparent that this entry does not show that the bill of exceptions was signed by the judge or that it was filed by the proper order of court duly entered of record, and that it does not show whether [387] it was filed in term time or in vacation. This is not sufficient, as has been ruled in many cases both in tbe Supreme Court and the appellate courts of this State. It is essential that the abstract of the record itself should shotv that it was filed by a proper order of court duly entered of record. [Clay v. Union Wholesale Pub. Co., 200 Mo. loc. cit. 673, 98 S. W. loc. cit. 577.] It was further essential that it should show that the bill of exceptions was authenticated by being signed by the judge. [Harris v. Wilson, 199 Mo. 412, 97 S. W. 591; Everett v. Butler, 192 Mo. 564, 91 S. W. 890; Novinger v. Quincy, O. & K. C. R. Co., 131 Mo. App. 337, 111 S. W. 515.] None of the defects of the abstract could upplemented by anything that the bill of exceptions ■f might contain. There is no showing that the of exceptions was filed in obedience to any order court duly entered upon the record, or that it was signed by the judge, and consequently does not comply with the rules in regard to abstracts. Nothing is left upon the record proper except the petition in' this case. As this was an appeal from a trial first had in a justice of the peace court in which great indulgence is shown towards formality in pleading, an examination of the petition, as a whole, reveals that while it is irregular and inartistic and not in compliance with the strict rules of pleading in courts of record, it does sufficiently state a cause of action under the liberal practice in justice of the peace courts. The judgment is accordingly affirmed and the appeal •.dismissed. All concur.