Simcoe Realty Co. v. William J. Lemp Brewing Co.

WOODSON, J. This is an action in ejectment instituted in the circuit court of Jackson county by the plaintiff against the defendant, to recover the possession of the west five feet of lot one hundred and ■ eighty-seven in Boss & Scarritt’s Addition, an addition in Kansas City, Missouri. The petition was in the usual form, and the answer admitted possession, sets'up the Statutes of Limitations as a bar and pleads an estoppel in pais, and asks that the rights and interest of the parties be ascertained and determined under the provisions of Sec. 2535, B. S. 1909, same as Sec. 650, B. S. 1899. The reply was a g’eneral denial. A trial was had and a judgment was rendered in favor of the defendants and the plaintiff appealed the cause to this court. I. At the outset of this case, we are confronted with the contention of counsel for respondents, to quote: “No motion for a new trial is preserved in the bill of exceptions, nor is there a call for one; therefore, there is nothing but the record proper before the court.” This contention is not controverted by counsel for appellant, but is conceded by counsel appearing in the circuit court of Jackson county and filing in the cause a motion to amend the bill of exceptions filed therein, by inserting in said bill the motion for a new trial, which motion, over the objections and exceptions of respondents, was by the court sustained. After said amendment 'had been made, counsel for appellant presented to this court a certified copy of the record of said amendment and ask leave to file- the same in the cause, in this court, to which counsel for respondents object. The motion to amend the bill of exceptions was filed in the circuit court of Jackson county, and all the subsequent procedures had thereon were had, after [32] counsel for respondents filed their brief in this court, raising the point that no motion for a new trial had been preserved in the bill of exceptions. Upon this showing it is apparent that the bill of exceptions, the proper repository of the motion for a new trial, is not only defective in that particular, but the abstract of the record filed in this court, under the statute and rules of this court, must be and is defective in that regard also. That being true, according to the repeated rulings of this court, there is nothing before us for determination, except the record proper. [Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Betzler v. James, 227 Mo. 375; Blanchard v. Dorman, 236 Mo. 416.] II. While counsel for appellant have assigned no error appearing upon the record proper, nevertheless, we have taken the precaution to examine it carefully, and by so doing we failed to find any. Therefore, according to the following authorities, the judgment should be affirmed: Summet v. City Realty Co., 208 Mo. 501; Noble v. Brinson, 231 Mo. 640. It is so ordered. All concur.