109 Mo. App. 396 | Mo. Ct. App. | 1905
(after stating the facts). —
“Sec. 825. After change, cleric to transmit record. —When any such order shall be made by the court or judge, the clerk shall immediately make out a full transcript of the record and proceedings in the cause, including the petition and affidavit and order of removal, and transmit the same, duly certified, together with all the original papers filed in the cause, and not forming a part of the record, to the clerk of the court to which the removal is ordered, and for failure to do so shall forfeit one hundred dollars to the party aggrieved, to be recovered by civil action.”
If the court was correct in refusing plaintiff’s peremptory instruction, then the judgment should be affirmed, as the giving of instructions for the defendant is not assigned as one of the grounds for new trial in the motion therefor and for this reason they are not reviewable. [State v. Headrick, 149 Mo. l. c. 404, 51 S. W. 99; Fullerton v. Carpenter, 97 Mo. App. l. c. 301, 71 S. W. 98.] The uncontradicted evidence shows that the Schuyler Circuit Court did not convene after November, 1902, until May 4,1903, and the defendant went out of office on January 1,1903, at which time he turned over his office and delivered the transcript and papers in the partition suit to his successor. Thereafter it became the duty of his successor to make the transmission and if he negligently failed to do so in time to have the cause docketed for the May term, 1903, of the Schuyler Circuit Court, the defendant is not responsible for such negligence. I think the evidence shows that the transcript was negligently withheld, but the question in the case is, should that negligence be ascribed to defend
Discovering no reversible error in the record, the judgment is affirmed.