Chrisco Bros. v. Carroll

GRAY, J. This cause was tried before a jury in the circuit court of Shannon county, September 14, 1909, resulting in a verdict in favor of the plaintiff in the sum of $127.90, and defendant appealed. The plaintiffs were the keepers of a livery stable in Eminence, and they hired to defendant a team of horses, harness and buggy. The defendant used the team about twenty-one days and during the time he had it, one of the horses was drowned, and plaintiffs claim the buggy and harness and other horse were damaged. The suit was commenced before a justice of the peace, and the plaintiffs alleged their damages to be $219.50. The defendant filed a counterclaim of $220.20. On trial before the justice, plaintiffs recovered a judgment of $140. The abstract of the record filed by the appellant and his bill of exceptions also, show that the case was [379] tried on the 14th day of September, 1909, and the motion for new trial was not filed until September 20th, 1909. This was too late. [Section 803, Revised Statutes 1899; State v. Brooks, 92 Mo. 591, 5 S. W. 330.] There is nothing in the abstract of the. record or in the bill of exceptions showing that any exception was saved to the action of the court in overruling defendant’s motion for new trial. If the record fails to show an exception was saved to the overruling of the motion for new trial, the grounds assigned in said motion are not open for review on appeal. [State v. Harris, 216 Mo. 392, 115 S. W. 968; State v. Crites, 215 Mo. 91, 114 S. W. 618; Wilbrandt v. Laclede Gas Light Co., 135 Mo. App. 220, 115 S. W. 497.] For the reasons assigned, there is nothing for review on this appeal except the record proper. [State v. Crites, 215 Mo. 91, 114 S. W. 618.] And as there is nothing irregular in the record, the judgment will be affirmed. All concur.