49 Mo. App. 157 | Mo. Ct. App. | 1892
Section 2253, Bevised Statutes, 1889, provides that the appellant or plaintiff in error may, in lieu of a transcript, file in the appellate court a copy
The respondent in the case before us has filed a motion to dismiss the appeal for failure to comply with this section, in that the appellant has failed to file such printed abstracts as the law contemplates. The specific objection is that it is not shown that a bill of exception was filed, or that there was a bill of exceptions in the cause. Under the assignment presented in the appellant’s brief, which pertains to matters of exception only, the omission is a fatal one. The abstract in such a case should not only contain the record evidence of the filing of the bill, but if the bill be filed out of term, it should also contain a copy of the order of court granting leave to file it in vacation. But, in view of the fact that the statute creates a new mode of practice, and it has never, so far as we are advised, received a judicial construction, we are not disposed to inflict on the appellant so severe a penalty as the dismissal of his appeal. We will overrule the motion to dismiss, but will require the ■appellant to file, at his own cost, additional abstracts within ten days from this date.
We think it proper in this opinion to indicate briefly, and in a general way, what in our opinion such abstracts should contain. If the questions relied on for