Hardin v. Roberts Cotton Oil Co.

REYNOLDS, P. J. Action by respondent to recover damages for personal injuries alleged to have been sustained by him in the operation of a cotton gin. Prom a judgment in favor of respondent, plaintiff has appealed to our court. As reluctant as we are and always have been to dispose of any case other than on the merits, we are obliged to do so with the present case. A very careful examination of the printed abstract furnished by appellant fails to show any order of record of the court, judge, or clerk, of the filing of any bill of exceptions in the circuit court of Bollinger county, from the judgment of which court this appeal was taken. What purports to be the bill of exceptions in the case is in the abstract. Preceding this bill of exceptions is what is intended to be the record proper, but which contains matter properly belonging to the bill of exceptions. The last entry in this is an objection to remarks of counsel, followed by the ruling of [730] the court on the objection and then an exception to the ruling. Following this is the venue, title of cause and this: “Defendant’s Bill of Exceptions.” No entry here appears showing that it was filed in court. At the end of the bill of exceptions is the usual certificate of the judge of the circuit court, that the bill of exceptions had been presented to him in pursuance of leave granted, the appellant praying “that the same may be signed and sealed as such and made a part of the record in this cause, which is accordingly done, this 24th day of February, 1913.” This is signed by the judge. Following this is the entry: “Filed, February 26, 1913.” Where it was filed, by whom this date of filing was attached, nowhere appears. Apart from this recital in the bill of exceptions itself, there is nothing whatever in the abstract to show that this bill or any bill of exceptions was ever filed with the clerk or in court. Proceeding under our Rule 33 (181 ,Mo. App.XII), counsel for respondent duly served and filed objections to the abstract for many reasons, among others, because that abstract fails to show any order of the court covering the fact of filing the bill of exceptions. While counsel for appellant have met many of the objections made to the abstract, they have not met this particular point, nor overcome this objection, which if true, is fatal and precludes any consideration of matter covered by the bill of exceptions, and which can only be considered by us when preserved in and brought before us by bill of exception. In such condition, that is, the lack in the record of any entry showing the filing of a bill of exceptions, our Supreme Court has so distinctly and in so many cases laid down the law which must govern, that we are bound to follow that ruling, and cannot overlook or disregard this fatal omission. Among the latest of the decisions covering this point is that of Wallace v. Libby, 231 Mo. 341, 132 S. W. 665, where it is held [731] that the failure of the record proper to show the filing of a hill of exceptions, is fatal to a hearing in the appellate courts, on matters which can only he preserved by a bill of exceptions, it being further said in that case, as has been said in many others, that the recital of the filing of the bill of exceptions appearing only in that bill itself, does not supply the omission of an entry of filing in the record proper. [See also Langstaff v. City of Webster Groves, 246 Mo. 223, 151 S. W. 456.] In the light of these decisions of our Supreme Court, we are obliged to hold that there is nothing before us for review but the record proper. Finding no error in that, the judgment of the circuit court must be and is affirmed. Nor tom and Allen JJ., concur.