Brosius v. McGaugh

27 Mo. 230

• Court: Supreme Court of Missouri
• Decided: July 15, 1858
• Status: Published

Opinion

Richardson, Judge,

delivered the opinion of the court.

The practice of finding the facts in cases tried without a jury has been abolished, and in a case therefore commenced since the revised statutes of 1855 took effect, the finding of the facts'by the court can not be regarded for any purpose, as it has no place in the record. (Martin v. Martin’s adm’r, 27 Mo. 227.) Under the code of 1849 the finding was required to state facts and not the evidence ; and it was never the office of a finding to set out the evidence, and it was never treated as a bill of exceptions containing the evidence. The record in the case calls for a bill of exceptions, but" an examination of it will show that none of the evidence is preserved unless it can be inferred from the finding. The evidence then not being preserved, the instructions can not be reviewed. (State v. Vaughn, 22 Mo. 20.) The other judges concurring, the judgment will be affirmed.