Allen v. Aylor

86 S.W. 904, 111 Mo. App. 257, 1905 Mo. App. LEXIS 489

• Court: Missouri Court of Appeals
• Decided: February 27, 1905
• Status: Published

Opinion

JOHNSON, J.

The record shows the bill of exceptions in this case was not filed in proper time. In the order allowing the appeal the court granted defendant until the first day of the October term (October 3d) of court, 1904, within which to file his bill of exceptions. No order of extension was made and the bill was not filed until October 15th. The affidavit of one of the attorneys of defendant that an order of extension was in fact made cannot be considered. The record imports absolute verity. State v. Blunt, 110 Mo. 322. Nor will the fact that such order of extension appears in the bill of exceptions be received to contradict the record. The latter controls. This leaves nothing for us to consider hut the record proper.

Defendant in his answer pleaded facts which if' true precluded a recovery. It does not appear from the abstract that this answer was controverted by a reply, but there is enough before us in the record proper, as well as in the statement, brief and argument of defendant’s counsel, to show the case was tried upon the assumption that the facts alleged in the answer were in issue. We will so treat it. Holke v. Herman, 87 Mo. App. 132.

No error appears in the record proper and the judgment must therefore be affirmed.

All concur.