Peake v. Bell

Sherwood, C. J. i. bill of exceptions: practice 2 failure to file exhibits: practice, Action on promissory note. As in accordance with former rulings, we have stricken from the transcript in this cause what purports to be 0f exceptions filed therein, because no consent was entered of record to file out of term (West v. Fowler, 59 Mo. 40, and cases cited; Robart v. Long, admr) the record proper is all that remains for revision, and on inspection of this we discover no error. It is indeed claimed that although the petition is perfect on its face, yet as the note' was not in fact filed with the petition, that this is such a defect as may be reviewed even in this court, though the defendant answered and made no objection in the lower court. This view is erroneous. -The instrument sued on, constitutes no part of the record. (Chambers v. Carthel, 35 Mo. 374; Phillips v. Evans, 64 Mo. 17.) Our statute (2 W. S., 1022, § 51,) no longer requires “ profert,” as was the case when McCormick v. Kenyon, was decided. The cases of Rothwell v. Morgan, (37 Mo. 107,) and Dyer v. Murdock, (38 Mo. 224,) only decide that the failure to file the instrument may, after answer filed, be taken advantage of in the lower court by motion to dismiss, and that where a party, as in the latter case, in attempting to excuse non-filing, proffers in his pleading an excuse not warranted by statute, that this defect may be reached by demurrer. Our views on this [225] point have recently found expression in Burdsal v. Davies, (58 Mo. 138,) and Han. & St. Jo. R. R. Co. v. Knudson (62 Mo. 569.) Judgment affirmed. All concur. Arrirmed.