Donaldson v. Thompson

120 Mo. 152 | Mo. | 1894

Gantt, P. J.

This is an action at law to recover the first payment made by plaintiff to defendants on a purchase of two lots in Kansas City. He avers that by this contract if the defendant could not show a good title by abstract in thirty days, they were to refund the payment made. He alleges they failed to show title and asks a return of the money. The answers are separate and are general denials. The case was heard by the court on an agreed statement of facts and judgment given for plaintiff.

The defendants have duly incorporated the statement of facts in what is termed a bill of exceptions, which presents the anomaly of containing no exception to any action of the court. No exception was saved to the conclusion of law drawn by the court from the agreed facts, and no motion for new trial was made, so there is nothing here for review.

The learned counsel for defendants contends that this is one of the cases where no motion for new trial is required; but we do not concur in his view. It is true this court has in exceptional cases dispensed with motions for new trial, as pointed out in McIntire v. McIntire, 80 Mo. 470; Einkelnburg’s Missouri Appellate Practice, ch. 2, p. 37. But in a plain action at law, where the action complained of is an error in a legal conclusion, the uniform practice has been to require of the party to seek a correction of the error first in the trial court, and this practice obtains in all appellate jurisdictions. It is just in itself, both to the party injured and the trial court.

We are confined to the record proper and as no • error is apparent in that, the judgment is affirmed.

All concur.