Walner v. Wade

BLAND, P. J. The appeal is here on a certified copy of the judgment appealed from and order granting the appeal, and on printed abstracts. The abstract of the record contains nothing but a copy of the petition. It is nowhere recited therein that a motion for new trial was filed or that the bill of exceptions was filed, the bill of exceptions recites that motions for a new trial and in arrest of judgment were filed and overruled. It recites that time in which to file bill of exceptions was extended from time to time and, on December 10," 1906, the bill of exceptions was “signed, sealed and made a part of the record,” but does not recite that it was filed. It has been stated.over and over again that matter of which a record entry is made on the minutes of the circuit court must appear by the record, and if the case is brought up on short form the abstracts must show such matters appear of record, and that his showing cannot be made by recital of the facts in the bill of exceptions. The filing of a motion for a new trial and in arrest of judgment are matters of record and must be shown by the record proper. A. recital in the bill of exceptions that they are filed, is insufficient. [Lapsley v. Merchants Bank, 105 Mo. App. 98, 78 S. W. 1095; Parry & Gordon v. Coffee & Spice Co., 98 Mo. App. 409, 72 S. W. 130; Kirk v. Kane, 97 Mo. App. 556, 71 S. W. 463.] So also is the filing of the bill of exceptions a matter of record, and its filing must be shown by the record proper1, and if not so shown there is nothing before the appellate! court for review but the pleadings. [St. Charles ex rel. v. Deemar, 174 Mo. 122, 73 S. W. 469; Wilson v. Railway, 167 Mo. 323, 66 S. W. 928; Roush v. Cunningham, 163 Mo. 173, 63 S. W. 377; Lucas v. Huff, 92 Mo. App. 369; Hazell v. Clark, 89 Mo. App. 78; Bates v. Ruth & Mengal Realty Co., 88 Mo. App. 550.] There is nothing [498] before us forjreview but tbe petition. No objections are made to it and we find it states a good cause of action. Tbe judgment is affirmed. All concur.