Jackson v. Ferguson

76 Mo. App. 270 | Mo. Ct. App. | 1898

Bond, J.

Plaintiff sues the defendant upon a promissory note executed by him to E. E. Jackson for the sum of $1,000. It is alleged in one count of the petition that by inadvertence and mutual mistake E. E. Jackson was made the payee of said note, when in point of fact it should have been made payable to plaintiff, and a reformation is prayed. It is alleged in another count of the petition that the note was duly assigned to plaintiff by E. E. Jackson. After praying for a reformation plaintiff also sought to recover judgment for the amount of the note. Defendant admitted the execution of the note, denies that it was intended to be executed to plaintiff, and averred that it was fraudulently procured and without consideration, and alleged that plaintiff took it with full knowledge of these infirmities. The answer further set up that defendant had instituted a suit against plaintiff for the cancellation of said note. The cause was tried by the court without the aid of a jury, and avei’dict and judgment rendered in favor of plaintiff, from which this writ of error was duly prosecuted by defendant.

The case is brought up for review upon certificate and abstract as contemplated by section 2253 of the Revised Statutes of Missouri. A careful examination of the printed matter filed in this court as an abstract of the entire record of this cause, discloses nothing showing that a motion for new trial was filed in the lower court within the statutory period, nor that the motion for new trial contained therein was ever acted upon by the court, nor that any exception was taken to any ruling thereon. These are insuperable difficulties to the consideration by us of the rulings of the trial court upon matters of exception arising in the lower court. This has been repeatedly decided by the appellate courts in this state and clearly announced in the terms of the statute. Danforth v. Railway, 123 Mo. loc. cit. 196; Wentzville Tobacco Co. v. Walker, 123 Mo. 662; Bruns v. Capstick, 62 Mo. App. 57; Hohstadt v. Daggs, 49 Mo. App. 158; State ex rel. Estes v. Gaither, 77 Mo. 304; McIrvine v. Thompson, 81 Mo. 647; Wilson v. Haxby, 76 Mo. 345; Demske v. Hunter, 23 Mo. App. loc. cit. 466; State to use v. Mason, 31 Mo. App. loc. cit. 211; R. S. 1889, secs. 2243 and 2302.

Nothing being presented by this appeal but a consideration of the record proper, and it appearing from the face thereof that the judgment rendered was warranted by the scope and allegations of the pleadings, it must be affirmed.

All concur.