Smith v. Smith

111 Mo. App. 683 | Mo. Ct. App. | 1905

NORTONI, J.

(after stating the facts). — Counsel for plaintiff in error contends that inasmuch as the agreed statement of facts, together with the note sued on, was all the evidence introduced; that such agreed statement was reduced to writing and filed in the cause and in the form of a stipulation, copied into the record by the clerk and appears in the transcript here, thereby became and is a part of the record and is a proper matter to review in this court on the writ of error.

The note sued on does not appear. We cannot agree with counsel in this contention. This case certainly cannot come within the purview of section 793, R. S. 1899, which provides that “parties to a question in difference which might be the subject of a civil action may, without action, agree upon a case containing the facts, “etc., and submit the same to a court of competent jurisdiction. For in the case at bar, it was a case where action was commenced by petition, answer was interposed and issues made up in the usual manner. That section contemplates a case where, without action, the parties came into court and submit their controversy in an agreed form. This is a suit begun in the regular manner, the issues made up and, for convenience, the facts were agreed upon and submitted. In such cases it has been held from an early date in this State that such agreed statement of facts constitutes matter of exception.

In Kennerly v. Merry, 11 Mo. 214, Judge Napton said: “A statement of facts agreed on by counsel is copied by the clerk in the record, but it is not made a part of the record by bill of exceptions. The judgment will therefore be affirmed.” That case has been followed by our Supreme Court. The most recent approval of its doctrine is to be found in State ex rel. Malin v. Merriam, 159 Mo. 655, 60 S. W. 1112.

The stipulation or agreement of counsel in- a case does-not become a part of the record unless made so by bill of exceptions. Eystra et al. v. Capelle, 61 Mo. 578. It does not follow that every motion, stipulation or paper copied by the clerk into thé record becomes a part - of the record. State v. Wall, 15 Mo. 208; State v. Batchelor, 15 Mo. 207.

“A clerk cannot make anything a record which he pleases to write in the order book' or sees fit to copy into the record.” U. S. v. Gamble, 10 Mo. 457. State ex rel. v. Merriam, supra.

“The statement of facts agreed upon by the counsel is not a part of the record proper and has not been made a part of the record by a bill of exceptions, and cannot therefore be considered by this court.” State ex rel. v. Merriam, 159 Mo. 655, 60 S. W. 1112.

There is nothing here for review other than the errors appearing on the face of the record proper. State ex rel. v. Merriam, supra; Newton v. Newton, 162 Mo. 173, 61 S. W. 881; Pepperdine v. Hymes, 92 Mo. App. 464. Although no assignments of error are made against the record proper, we have examined the same and find no error therein.

For the reason stated, the judgment is affirmed.

All concur.