Ferguson v. Baker

ALLEN, J. This is a suit to recover damages for-alleged false and fraudulent representations made by defendant to plaintiff, while acting as the latter’s agent j whereby plaintiff is said to have suffered loss in and through the sale of a lot of ground in Webster Groves,, Missouri. Upon a trial of the issues below, there was a verdict for plaintiff, upon which judgment was accordingly entered. Thereafter a motion for a new trial filed by defendant was sustained and a new trial [620] granted, from which, order plaintiff prosecutes this appeal. The point is made that the record shows no exception saved by appellant to the ruling of the court •sustaining respondent’s motion for a new trial. As no such exception appears in the record, this alone suffices to prevent a review here of the action of the lower court in granting the new trial. Under our appellate practice, an adverse ruling upon a motion for a new .trial is not open to review in the absence of an exception preserved thereto. Appellant concedes that this is true where a motion for a new trial is overruled, but suggests that a different rule should obtain where the motion is sustained. But it cannot matter what may be the court’s ruling upon the motion, for in any event its ruling thereupon, adverse to appellant, is a matter of which appellant cannot complain unless it appears that an exception thereto was saved. ' • It was suggested by learned counsel for appellant, in argument ore tenus, that the action of the court on the motion is a matter belonging in the record proper. -This is true. £ £ The record proper must show the filing of the motion, and the action of the court thereon, but if an exception to the action of the court is to be taken, it must be preserved in the bill of exceptions, and in abstracting such bill of exceptions the fact that the exception has been preserved, must appear.” [Hays v. Foos, 223 Mo. l. c. 423, 122 S. W. 1038.] It follows that the action of the court in sustaining the motion for a new trial must be affirmed, and it is so ordered. Reynolds, P. J., and Nortoni, J., concur.