Davis v. Hays

1 Mo. 270

• Court: Supreme Court of Missouri
• Decided: November 15, 1822
• Status: Published

Opinion

McGirk, C. J.,

delivered the opinion of the Court.

This is a case upon a writ Of error, from the Circuit Court of Cape Girardeau county. The object appears to have been, to try the constitutionality of the loan office certificates. The transcript shows, a motion was made against the Sheriff, and the Court decided, that Davis, who made the motion, should pay the costs. The transcript presents no legal record, which this Court can notice, according to the constant practice of this Court. The party must show the foundation on which the Court decided. This matter should have been presented, hy saving the evidence in the case;'by incorporating it in a bill of exception, and then calling on the Court to pronounce the law thereon, and prayed to have the exception signed, and made a part of the record, if dissatisfied. And this rule holds, with regard to all extraneous facts, not presented by an issue of fact or law; here no issues were made, no evidence saved legally, and the Court gives judgment for costs. The entry, that a motion was made, is a thing well enough, and a thing which the Clerk might record; but the evidence to support it is not to be recorded, unless by exception taken, and sealed by the Judge. That has not been done here, and the judgment for costs, as to any thing appearing by record, is well enough, and the sentence or judgment of the Circuit Court, with respect to costs, is affirmed; and the defendant shall have the costs of this writ of error.