Donovant v. Rinn

ELLISON, J. Plaintiff’s action is to recover the amount of a reward offered for finding the body of defendant’s son, who was drowned in the Missouri River. The judgment in the trial court was for the plaintiffs and defendant appealed. The bill of exceptions does not show that an exception was taken to the action of the court in overruling the motions for new trial and in arrest of judgment. More than a year after the appeal was taken, and after plaintiffs had made objection and asked an affirmance of the judgment, defendant asks that she be permitted to amend the abstract by adding thereto that exceptions were, in fact, taken. Plaintiffs object [76] to this leave and point out what they term defendant’s neglect in the matter; and further, they insist that without that objection the judgment must he affirmed on other grounds. We find that the record proper does not show that these motions were ever filed. The hill of exceptions states they were, hut that will not suffice. [Hays v. Foos, 223 Mo. 421; Kolokas v. Railway Co., 223 Mo. 455; Wallace v. Libby, 231 Mo. 341; Keaton v. Weber, 233 Mo. 691; City of St. Louis v. Henning, 235 Mo. 44.] Again, the record proper does not state that the bill of exceptions was duly filed. It nowhere mentions a hill of exceptions. The bill of exceptions states the hill was filed; hut, as we said of the motion for new trial, that is a matter which should appear in the record proper. [Authorities last cited.] We are thus left to the record proper. Prom that we learn there was a petition, answer and reply. The petition is ample after verdict. It is true that defendant, by motion, asked that plaintiffs he required to make it more definite and certain, the motion being overruled; and complaint is made of this ruling, in the brief. But even if defendant had a right to complain in the state of the record as above set out, she waived all such right by answering. [Ewing v. Vernon Co., 216 Mo. 681, 685; Storage Co. v. Kuhlmann, 238 Mo. 685, 702; Sandusky v. Courtney (decided this term).] The judgment is affirmed. All concur.