Jones v. Evans

80 Mo. 565 | Mo. | 1883

Sherwood, J.

The bill of exceptions in this cause was filed at tbe September term, 1880, and included matters not only which bad occurred at that term, but also those which had occurred in the cause at former terms, but as to which, no exceptions had been taken or preserved. The office of a bill of exceptions is to preserve such matter's of exception as occur during the term, to which exception has been taken. There is nothing in this record which takes it out of the operation of the general rule, so that only those matters of exception as occurred at the September term, 1880, can he reviewed by us in any event. But it is unnecessary that we look into the errors said to have happened at that term, for the reason that the judgment on the merits of the cause was rendered at the September term, 1879, and no appeal has been taken from that, both parties being therewith content.

The disposing of the attachment at the September term, 1880, was not a final judgment from which an appeal will lie. Davis v. Perry, 46 Mo. 449 ; Jones v. Snodgrass, 54 Mo. 597.

The issue made by the affidavit for attachment and the plea in abatement, was a mere side issue, totally disconnected from the merits, and this especially so, since the attachment was merely ancillary to the original summons. To be effective, an appeal must operate on a final judgment, and not upon something less than a final judgment. A party cannot appeal his cause by piecemeal. Anderson v. Moberly, 46 Mo. 191. And especially when the final judgment, as here, is allowed to stand unaffected by the appeal, ib.

Forasmuch as there is no final judgment, the cause . should be stricken from the docket.

All concur.