Demske v. Hunter

Missouri Court of Appeals

Demske v. Hunter

23 Mo. App. 466, 1886 Mo. App. LEXIS 85

CourtMissouri Court of Appeals

DecidedDecember 6, 1886

StatusPublished

Cited by6 cases

This text of 23 Mo. App. 466 (Demske v. Hunter) 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

Demske v. Hunter, 23 Mo. App. 466, 1886 Mo. App. LEXIS 85 (Mo. Ct. App. 1886).

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Opinions

Ellison, J.

This is an action of replevin in which the plaintiff prevailed and defendant appeals. There was a motion for new trial, but the date of its, filing no where appears. All that appears in the bill of exceptions is the following:

“The case then went'to the jury, who afterwards brought in their verdict in favor of plaintiff. Thereupon the defendant filed his motion for a new trial in words .and figures, as follows, to-wit (here follows motion), which said motion the court overruled, and to the opinion of the court in overruling same the defendant at the time objected and excepted.”

It has been held that while the filing of a motion for new trial is entered on the clerk’s minutes yet it is not -a part of the record proper, but such filing and the date thereof, must be shown by the bill. State ex rel. Estes v. Garther, 77 Mo. 304. It has also been determined that the bill of exceptions must show such filing to have been within the four days prescribed by the statute. Lessee v. Carondelet, 6 Mo. App. 582; Haarstick v. Shields, 8 Mo. App. 601; Bollinger v. Carner, 79 Mo. 318.

The question, then, in this case is, does the statement following a recital of the rendering of the verdict that, “thereupon” the defendant filed a motion for new trial, without other reference as to time or date, cover the requirement of the law. “Thereupon” in the. connection here used, may mean immediately, and it may mean by reason of, or in consequence of. That is, by reason of the rendition of the verdict or in ■consequence of it, the defendant at some time afterwards filed his motion. The use of the word “thereupon” without more, does not then make it appear affirmatively that the motion was filed within the time limited by statute. We cannot, therefore, take notice of the bill of exceptions in this case, and, discovering no error in the record proper, we affirm the judgment.

All concur.

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Ellison, J.

This is an action of replevin in which the plaintiff prevailed and defendant appeals. There was a motion for new trial, but the date of its, filing no where appears. All that appears in the bill of exceptions is the following:

“The case then went'to the jury, who afterwards brought in their verdict in favor of plaintiff. Thereupon the defendant filed his motion for a new trial in words .and figures, as follows, to-wit (here follows motion), which said motion the court overruled, and to the opinion of the court in overruling same the defendant at the time objected and excepted.”

It has been held that while the filing of a motion for new trial is entered on the clerk’s minutes yet it is not -a part of the record proper, but such filing and the date thereof, must be shown by the bill. State ex rel. Estes v. Garther, 77 Mo. 304. It has also been determined that the bill of exceptions must show such filing to have been within the four days prescribed by the statute. Lessee v. Carondelet, 6 Mo. App. 582; Haarstick v. Shields, 8 Mo. App. 601; Bollinger v. Carner, 79 Mo. 318.

The question, then, in this case is, does the statement following a recital of the rendering of the verdict that, “thereupon” the defendant filed a motion for new trial, without other reference as to time or date, cover the requirement of the law. “Thereupon” in the. connection here used, may mean immediately, and it may mean by reason of, or in consequence of. That is, by reason of the rendition of the verdict or in ■consequence of it, the defendant at some time afterwards filed his motion. The use of the word “thereupon” without more, does not then make it appear affirmatively that the motion was filed within the time limited by statute. We cannot, therefore, take notice of the bill of exceptions in this case, and, discovering no error in the record proper, we affirm the judgment.

All concur.

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23 Mo. App. 466, 1886 Mo. App. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demske-v-hunter-moctapp-1886.

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