Lloyd v. Thurman

69 Mo. App. 145 | Mo. Ct. App. | 1897

Gill, J.

This is a proceeding, instituted under sections 74 and following, Revised Statutes, 1889, to discover concealed assets belonging to the estate of M. M. Thurman, deceased. The case originated in the probate court of Shelby county, whence it was taken by appeal to the Shelby circuit court and thence; by change of venue, to the Macon court. There have been several trials attended with varied fortune to either party, but at last resulted in a dismissal by the Macon circuit court on a motion filed by the defendant.

Appellate Practice: bill or exceptions: motions. On account' of a failure to incorporate within the bill of exceptions the matters which we are asked to consider, we have nothing to do but affirm the judgment, since there appears no error in the record proper. Neither the motion to dismiss nor the motions for new trial or in arrest are set out in the bill of exceptions ; they are not therefore before us for review. The language of the supreme court in Jefferson City v. Opel, 67 Mo. 394, is appropriate here:

“Nothing but a bill of exceptions can make motions a part of the record, and unless incorporated bodily in the bill, they can not be noticed by this court. They are no part of the record proper, and should not appear there, and why they are inserted as a part of the record and omitted from the bill of exceptions, we are at a loss to understand. Copying them in both places unnecessarily incumbers the transcript, and it is of no avail to the party excepting, that they are in the record proper where they do not belong, if omitted from the bill of exceptions where and where only they do properly belong.”

See, also, U. S. v. Gamble, 10 Mo. 457; State v. Shehane, 25 Mo. 565; State v. Griffin, 98 Mo. 672; Nichols v. Stevens, 123 Mo. 119; State v. Buck, 130 Mo. 480; Morrison v. Lehew, 17 Mo. App. 633; Jones v. Christian, 24 Mo. App. 540; McNeil v. Home Ins. Co., 30 Mo. App. 306; Mockler v. Skellett, 36 Mo. App. 174; In re Webster, 36 Mo. App. 355; Perkins v. Bakrow, 39 Mo. App. 331; Martin v. Estate of Nichols, 63 Mo. App. 342.

The judgment of the circuit court must he affirmed.

All concur.