46 Mo. 389 | Mo. | 1870
delivered the opinion of the court.
The plaintiff brings this cause here by appeal, first from the Circuit Court and then from the District Court, but without having filed in the trial court any motion in arrest or for a new trial. This court is therefore limited in its range of investigation to questions arising upon the face of the record proper ; that is, it will not consider questions which are alone presented by the bill of exceptions. The point of practice thus stated was care
The petition was a part of the record proper, but the defendant’s motion to strike out and the subsequent proceedings thereon were not; and these were matters which could alone be presented by a bill of exceptions, and they were accordingly presented in that way.
The plaintiff having neglected to file a motion for a new trial, thus giving the trial court an opportunity to review its own decision, the merits of the question he now seeks to raise can not be investigated or declared in this proceeding. That can only be reached by a suit which shall develop the equities sought originally to be asserted here, and which were asserted in the original petition, but which were cut out of the case by the action of the court.
The judgment must be affirmed.