Flowers v. Raupp

GOODE, J. The respondent in this case has taken issue with the appellant in regard to the contents of the bill of exceptions, claiming that it fails to show the filing of the motion for a new trial, the overruling of the same, or any exception saved thereto by the appellant. In support of this position he has'filed an abstract of the record on his part, which was duly served on the appellant. This abstract purports to show the contents of the bill of exceptions in regard to the motion for a new trial and it appears to contain the motion without any recital of its filing or overruling or any exception by the appellant to the court’s action in disposing «of it. We could look to the record outside the bill of exceptions to ascertain whether the motion was filed and overruled, hut it is indispensably necessary that an exception to the overruling should be exhibited by the bill, otherwise nothing’ can he considered by this court except the record proper. State v. Marshall, 36 Mo. 400; McIrvine v. Thompson, 81 Mo. 647; State v. Harvey, 105 Mo. 316; Danforth v. Ry. Co., 123 Mo. 196; State v. Murray, 126 Mo. 529; Ross v. R. R. Co., 141 Mo. 390. The respondent’s abstract is Unchallenged by the appellant and we are bound to conclude that its showing of what is in the bill of exceptions is correct. E. S. 1899, sec. 815. Besides, an examination of the original bill of exceptions which has been submitted to us corroborates his abstract. The record [456] proper contains no error and is sufficient to support the judgment of the court. It is therefore affirmed. All concur.