State v. Scobee
164 S.W. 198
Mo.
1914
Check Treatment
FARIS, J.

Defendant, convicted in the circuit court of Stone county of felonious assault, has ap pealed. Against his averments of error arising out o". matters of pure exception occurring upon the trial, thi State, to foreclose examination of the bill of excep tions, urges that there is no order in the record show ing either that the motion for a new trial was eve'i filed, or that it was ever overruled.

*272Motion for New Recltái of F°iifng and overruling. *271Looking to the record we note chat under the style of the case the circuit clerk has set out a com*272píete copy of the motion for a new trial, bnt the record fails to show any order of the * ourt regarding- it. It is true, that in the margin, opposite the style of the case and preceding suck copy of the motion, the clerk fias ge£ 011t catch words, thus: “Motion for new trial filed and overruled,” evidently for his own convenience in indexing and for reference; but there is not one- word to indicate to us what the court did. A reference to other parts of this transcript shows conclusively that these are mere catchwords, even if we did not judicially notice the custom of circuit clerks in making up their records, as also the statutes requiring orders of the circuit court to be indexed. [Sec. 2685 and 3859, R. S. 1909.] Opposite the style of this case and preceding- the sentence appear the words, “Sentence and judgment,” as is likewise the case as to all other orders in this transcript. Catchwords, or marginal notes of the clerk, manifestly made for his own convenience, can not eke out court orders. [State v. Johnson, 81 Mo. 60; Barbee v. Hereford, 48 Mo. 323.] It follows that, since that which has been called the record proper to distinguish it from that part of the record made so by the timely and proper filing' of a bill of exceptions, fails to show either that the motion for a new trial was filed or that it was overruled, there is nothing before us except the record proper. [State v. George, 221 Mo. 519; Hill v. Butler County, 195 Mo. 511.]

We have carefully examined the record proper and find no error therein of moment sufficient to justify reversal and therefore consider -that the judgment should be affirmed. Let this be done.

Walker, J. J., and Brown,. J., concur.