Bates v. Ruth & Mengal Realty Co.

Missouri Court of Appeals

Bates v. Ruth & Mengal Realty Co.

88 Mo. App. 550, 1901 Mo. App. LEXIS 93

CourtMissouri Court of Appeals

DecidedApril 23, 1901

StatusPublished

Cited by3 cases

This text of 88 Mo. App. 550 (Bates v. Ruth & Mengal Realty Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bates v. Ruth & Mengal Realty Co., 88 Mo. App. 550, 1901 Mo. App. LEXIS 93 (Mo. Ct. App. 1901).

Pincite

Opinion

GOODE, J.

Tbis suit, wbicb is one to set aside an alleged fraudulent satisfaction of a deed of trust and' foreclose tbe same, is in no condition to be reviewed as tbe record stands. Tbe judgment was rendered at tbe February adjourned term of tbe circuit court of Butler county. Tbe motion for a new trial was overruled on tbe nineteenth day of May. The affidavit for appeal was sworn to tbe twenty-sixth day of tbe same [552]*552month. When it was filed is not shown. The appeal was granted and ninety days given in which to file the bill of exceptions. The record is entirely silent as to when this order was made bnt it must have been before the first Monday in June, because another term of court was due then. . The bill of exceptions itself recites that it was filed in vacation on the second day of October. The most liberal inference in regard to when the order was entered allowing ninety days in which to file it, could not extend the time to near the day when it is recited to have been filed.

But there is nothing in the record outside of the bill to show it was ever filed, no entry or minute of the clerk. We, therefore, are precluded from considering it. Ricketts v. Hart, 150 Mo. 64; Rimel v. Hayes, 83 Mo, 200; State v. Rolley, 135 Mo. 677; Finlay v. Gill, 80 Mo. App. 458; State v. Harris, 121 Mo. 445; Walser v. Wear, 128 Mo. 652.

Neither does it appear that the motion for a new trial was filed inside of four days after the rendition of the judgment, which is likewise fatal. Bollinger v. Carrier, 79 Mo. 318; Bruns v. Capstick, 62 Mo. App. 57; State ex rel. v. Mason, 31 Mo. App. 211. Nor does it appear that the appellant saved any exception to the court’s action in overruling said motion, which omission made utterly futile the previously saved exceptions. R. S. 1899, see. 864; State v. Gray, 149 Mo. 458; Ross v. Railroad, 141 Mo. 390; State v. Murray, 126 Mo. 526; Danforth v. Railroad, 123 Mo. 196; Taylor v. Switzer 110 Mo. 410; State v. Gilmore, 110 Mo. 1; State ex rel. v. Hitchcock, 86 Mo. 231; McIrvine v. Thompson, 81 Mo. 647; St. Joseph v. Ensworth, 65 Mo. 628; Ross v. Ross, 83 Mo. App. 330. No error is assigned, nor appears, except those which must have been saved by timely exceptions.

The judgment is therefore affirmed.

All concur.

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GOODE, J.

Tbis suit, wbicb is one to set aside an alleged fraudulent satisfaction of a deed of trust and' foreclose tbe same, is in no condition to be reviewed as tbe record stands. Tbe judgment was rendered at tbe February adjourned term of tbe circuit court of Butler county. Tbe motion for a new trial was overruled on tbe nineteenth day of May. The affidavit for appeal was sworn to tbe twenty-sixth day of tbe same [552]*552month. When it was filed is not shown. The appeal was granted and ninety days given in which to file the bill of exceptions. The record is entirely silent as to when this order was made bnt it must have been before the first Monday in June, because another term of court was due then. . The bill of exceptions itself recites that it was filed in vacation on the second day of October. The most liberal inference in regard to when the order was entered allowing ninety days in which to file it, could not extend the time to near the day when it is recited to have been filed.

But there is nothing in the record outside of the bill to show it was ever filed, no entry or minute of the clerk. We, therefore, are precluded from considering it. Ricketts v. Hart, 150 Mo. 64; Rimel v. Hayes, 83 Mo, 200; State v. Rolley, 135 Mo. 677; Finlay v. Gill, 80 Mo. App. 458; State v. Harris, 121 Mo. 445; Walser v. Wear, 128 Mo. 652.

Neither does it appear that the motion for a new trial was filed inside of four days after the rendition of the judgment, which is likewise fatal. Bollinger v. Carrier, 79 Mo. 318; Bruns v. Capstick, 62 Mo. App. 57; State ex rel. v. Mason, 31 Mo. App. 211. Nor does it appear that the appellant saved any exception to the court’s action in overruling said motion, which omission made utterly futile the previously saved exceptions. R. S. 1899, see. 864; State v. Gray, 149 Mo. 458; Ross v. Railroad, 141 Mo. 390; State v. Murray, 126 Mo. 526; Danforth v. Railroad, 123 Mo. 196; Taylor v. Switzer 110 Mo. 410; State v. Gilmore, 110 Mo. 1; State ex rel. v. Hitchcock, 86 Mo. 231; McIrvine v. Thompson, 81 Mo. 647; St. Joseph v. Ensworth, 65 Mo. 628; Ross v. Ross, 83 Mo. App. 330. No error is assigned, nor appears, except those which must have been saved by timely exceptions.

The judgment is therefore affirmed.

All concur.

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88 Mo. App. 550, 1901 Mo. App. LEXIS 93, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bates-v-ruth-mengal-realty-co-moctapp-1901.

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