97 Mo. App. 556 | Mo. Ct. App. | 1903
— This case was here by appeal on a’ former occasion, as may be seen by reference to 87 Mo. App. 274, when the judgment of the circuit court was reversed and the cause remanded. Since then there has been another trial in which the plaintiff had judgment and the defendant appealed.
The action of the trial court in sustaining .or overruling a motion for a new trial is a matter of exceptions which the bill of exceptions must show was acted on and exceptions duly saved, but the evidence of the filing of the motion, under the rulings in the cases just cited must be found in the abstract of the record proper. Matters of mere exception belong to the bill, of exceptions and can not be proven by the recitals on the record proper (Nichols v. Stevens, 123 Mo. l. c. 119) and the other matters belonging to the record proper can not be proven by recitation in the bill of exceptions.
Since the abstract of the record proper does not show that a motion for a new trial was filed, and since no error appears upon the face of that record, we will affirm the judgment.