264 Mo. 463 | Mo. | 1915
This is a suit in ejectment to-recover the possession of lot 3 in block 30 in the city of Savannah, Missouri. Judgment below was in favor of some of the plaintiffs and defendant has appealed.
Respondents contend that the appellate review must be limited to the record proper. Upon examination, we find that the abstract of the record proper-fails to show that a motion for a new trial was filed within four days after the 'trial. In fact the abstract. of the record proper fails to state that a motion for a new trial was filed at any time. That portion of the abstract known as the, bill of exceptions, does state that a motion for a new trial was filed. But it has been held by a long-line of cases in this State that such a showing is insufficient. Discussing this identical point in the recent case-of Dalton v. Register & Co., 248 Mo. 150, Graves, J., speaking for the court, said: ‘ ‘ These cases are of such long standing and so numerous that the lawyers of the State must abide by them; and so consistent is the ruling that we shall not further restate the rule, other
Appellant contends that the abstract is sufficient under Eule 32 of this court. But appellant cannot in-vote the aid of the above rule in the present case for two reasons, viz.: (1) Eule 32 has to do only with record entries showing the necessary steps in perfecting the appeal, such as the filing of an affidavit for an appeal, order granting an appeal, and the record entries concerning the leave to file and the filing of bills of exceptions. It cannot be said that the filing of a motion for a new trial is a necessary step to perfect an appeal, because an appeal may be taken even when a motion for new trial has not been filed. And when a motion for new trial is filed “the steps to perfect an appeal” are not taken until the motion is-passed upon and is out of the way. (2) Even though it should be conceded, arguendo, that Eule 32 applied to the situation here, it would be of no avail in the present case, this because the present abstract does not even undertake to comply and does not comply with that rule.
It therefore follows that our consideration of the case must be limited to a review of the record proper. Upon examination, we find the record proper to be free from error. The judgment is affirmed.
PEE CUEIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.
