Continental Insurance v. Hurst

108 S.W. 575, 129 Mo. App. 627, 1908 Mo. App. LEXIS 165

• Court: Missouri Court of Appeals
• Decided: March 2, 1908
• Status: Published

Opinion

ELLISON, J.

This action is based on a promissory note, payable in installments, given for premium on a policy of fire insurance. The judgment in the trial court was for the defendant, and the plaintiff company appealed to this court.

Plaintiff’s abstract of the record proper consists of the pleadings in the cause. It then abstracts the bill of exceptions stating the exceptions taken during the trial. This includes the motion for new trial and its being overruled and exceptions thereto. But the filing of a motion for new trial must be shown by the record proper. The statement of its filing and setting it out in the bill of exceptions will not suffice. [Bower v. Daniel, 198 Mo. 317.] So as to the extension of time to file bill of exceptions. That is also stated in the bill to have been given. But it should appear in the record proper. And so as to the affidavit for appeal and allowance thereof. These are jurisdictional.

Beyond this there does not appear to be any judgment in the case. None is referred to, either in record proper or the hill of exceptions. It should have been in the former.

The appeal must be dismissed.

All concur.