Klotz v. Perteet

Ray, C. J. This is a suit in partition, petition in usual form, commenced originally in the circuit court of Reynolds county, but taken by change of venue, on the application of plaintiff, to the circuit court of Butler county. The case was tried by the court without a jury, and the issues found for plaintiff. The court found that the property^uróuTdThot be divided in kind, ordered a sale therepfand approved the report of sale, and entered a final/judgment partitioning the proceeds among the parties in interest. When the cause was regularly called for trial, the pleadings and issues being duly made up, the parties announced themselves ready for trial and defendant thereupon demanded a jury to try the issues, and after argument as to the right of defendant so to have a jury the court refused same, holding that the suit in partition was properly triable by the court and not by a jury. Objection was then made by counsel for defendant that the court ought not to. try the case, and remarks, not necessary to now set out, were made in this behalf by counsel and by the court, after which the court directed the plaintiff to call his testimony, and a witness was called and appeared on the- stand to be sworn for the cause, when counsel for defendant, with leave of court, held a brief consultation with his client, and thereupon filed a petition and affidavit for change of venue upon the ground of the bias and prejudice of the judge, and that he had expressed an opinion in the cause. The case was, it seems, set for trial on the first day of the term and was passed on that day because of the absence of both parties and their attorneys and was again passed on the second day at the request of the defendant’s counsel, and the petition and affidavit for change of venue, as we have seen, was thus filed on the third day of the term, and was by the court then refused, whereupon the defendant abandoned the case, [216] and tendered his bill of exceptions, both as to the action of the court in refusing a jury and refusing the application for change of venue. The trial judge'certified that the bill of exceptions presented to him was not a true bill and then certifies thereon what the proceedings were, setting them out, and further certifying that the court had never known defendant, who lived in a different county, not in his circuit, and that the affidavit was not true. There is no bill of exceptions, signed by the bystanders and the bill, as tendered by the. defendant, was not signed by the judge, but, on the contrary, certified to be untrue, as previously stated, and was subsequently, on motion, stricken from the files. The principle errors assigned, and the only ones insisted upon in the printed argument, are the said refusal to submit the issues of fact to a jury, and the refusal to grant the change of venue upon defendant’s said application therefor. But these questions are not before us for several reasons. In the first place, the transcript nowhere shows, either in the bill of exceptions or elsewhere, that any motion for new trial was filed in the cause. We cannot, in the absence of a motion for new trial, consider the errors assigned, even if they are preserved in the bill of exceptions. Railroad v. Carlisle, 94 Mo. 166, and cases cited. Again the alleged bill of exceptions tendered by defendant, not having been signed either by the 'judge or by the bystanders, is not a bill of exceptions within the meaning of the' law. R. S. 1879, secs. 8635, 3638 and 3640, et seq. Moreover, the bill of exceptions signed by the judge and filed in the cause does not show any exception to the action of the court in refusing a jury. A ruling in that behalf is a matter of exception and if the exception is not properly saved, the ruling is not subject or open to review in this court. Ward v. Quinlivin, 65 Mo. 458. [217] And, further, the bill of exceptions which the judge signs does not contain the application for change of venue, nor any pretense at setting it out or its substance, nor does it show that defendant took any exception to the court’s action in overruling the same. The only objection or exception which said bill shows was to the action of the court in permitting testimony to be given in the cause. The action of the court, upon the application for change of venue, is also a matter of exception. Stearns v. Railroad, 94 Mo. 317 ; Keen v. Schnedler, 92 Mo. 516. In the present state of the record, in the absence of exceptions properly preserved, and in the absence of a motion for new trial, the errors of the court complained of, if they are such, are not before us for decision. Only the record proper is now before us, and as no errors are pointed out therein, and as we find none in that behalf, we must affirm the judgment, which is, accordingly, so ordered. Railroad v. Carlisle, 94 Mo. 166, and cases cited. All concur.