171 Mo. App. 324 | Mo. Ct. App. | 1913
Plaintiff’s action was began before a justice of the peace. On appeal to the circuit court judgment was rendered for plaintiff and defendant has brought the case here.
The abstract of the record proper shows a written statement of the canse of action, a written answer thereto and a reply. But there is no showing made of when the case was tried, or when judgment was rendered, or what the judgment was, or for whom it was. After setting out the pleadings in full, the abstract recites the following, only: “That thereafter the court, sitting as a jury, tried the cause and rendered judgment, which said judgment is embodied in the bill of exceptions herein incorporated, to which reference is hereby made.” There is no proper showing that a motion for new trial was filed during the term or within four days. All that it said on that head is as follows: “Motion for new trial was thereafter, and in the time allowed by the court, duly filed, and were by the court overruled; all of which orders are incorporated in the bill of exceptions and in. the transcript herein filed, to which reference is hereby made.”
The statute fixes the time for filing motions for new trial, and not the court. A reference to the bill of exceptions,, which latter shows that the motion was filed at the term and within four days, will not cure the omission. The proper showing must be in the record proper. A bill of exceptions is allowed for showing matters of exception, and inserting things therein not belonging there and which are of the record proper, will not cure the neglect to enter them in the latter place. [Langstaff v. Webster Groves, 246 Mo. 223; Wallace v. Libby, 231 Mo. 341; Milling Co. v. St. Louis, 222 Mo. 306; Harding v. Bedoll, 202 Mo. 625.]
There is a total failure to show in the record
We regard the written statement or pleadings- as ample to support the judgment, and it is accordingly affirmed.
