Landgraf v. Saunders Press Brick Co.

BOND, J. Plaintiff agrees that he purchased ten shares of stock in the defendant corporation; that defendant refused to transfer the same on its books to him or to issue him new certificates therefor, as it was directed to do by the vendor and former stockholder in defendant corporation. The defense is a general denial. The cause was submitted to the court without a jury and judgment rendered for plaintiff. Defendant appealed. Bill of exceptions. A careful examination of the bill of exceptions fails to show that it called for the motion for new trial filed by defendant. Neither does the bill of exceptions show that the defendant excepted to the overruling of its motion for new trial. The following written stipulation was entered into by the attorneys for the parties: “It is hereby stipulated and agreed that the bill of exceptions should contain the fact, that upon the defendant’s motion for new trial being overruled by the court, the defendant then and there saved its exceptions to the ruling of the court.” It is insisted by respondent that this stipulation does not accomplish the purpose it was designed to effect. The rule is that nothing can' be added to a bill of exceptions by stipulation which is not called for in the bill itself. If the rule were otherwise, parties could create a record for the court independently of its action or knowledge. If the bill of exceptions in the present case had contained a direction to copy the motion for new trial, it would have been sufficient that the motion for new trial was copied in some other part of the transcript. R. S. 1889, sec. 2304; State v. Buck, 130 Mo. 480. As it contained no such direction, the motion for new trial was not preserved in the record, but if it had been properly preserved, still it would not bring up for review any of the matters of exception therein set forth, unless the bill of exceptions also showed that an exception to the overruling of the 542 motion was taken at the time. As this was not shown in the bill of exceptions we would be also precluded for that reason from passing on any matters of exception occurring during the trial. With the ethical or professional obligations incurred by the attorneys in entering'into the above stipulation, we have no concern. It is our duty, upon the point being made, to declare the legal effect of the stipulation, which is that it can not be regarded as a substitute for essential omissions in the bill of exceptions. This limits the review of the present appeal to matters appearing on the face- of the record proper. As there is nothing in the pleadings or judgment showing that the recovery had by plaintiff was unwarranted, we must affirm it. The judgment is therefore affirmed. All concur.