Downs v. Hammond Packing Co.

Missouri Court of Appeals

Downs v. Hammond Packing Co.

106 S.W. 1117, 127 Mo. App. 688, 1908 Mo. App. LEXIS 15

DecidedJanuary 6, 1908

StatusPublished

This text of 106 S.W. 1117 (Downs v. Hammond Packing 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

Downs v. Hammond Packing Co., 106 S.W. 1117, 127 Mo. App. 688, 1908 Mo. App. LEXIS 15 (Mo. Ct. App. 1908).

Pincite

Opinion

ELLISON, J.

This action was brought to recover damages for personal injuries alleged to have been received by plaintiff through the negligence of defendant’s servants. At the close of the evidence in plaintiff’s behalf the trial court sustained a demurrer thereto, whereupon plaintiff took a non-suit with leave. After-wards, as shown by the bill of exceptions, the motion to set aside the non-suit and grant a new trial was overruled and plaintiff appealed.

The record proper, as shown by the abstract, only contains the appointment of a next friend and the pleadings in the cause. The record proper does not show that any motion to set aside the non-suit and grant a new [689]*689trial was ever filed. Nor does it show that a hill of exceptions was filed, or that a judgment was rendered, or that a.n affidavit for appeal was made, or that an appeal was granted. These things are shown in the bill of exceptions. But they are not matters of exception and are not proven by a statement in the bill. They should have been made to appear in the record proper. This has been ruled so frequently and uniformly by the Supreme Court and each of the Courts of Appeal that it is not necessary to do more than to state the defects. The appeal will be dismissed.

All concur.

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ELLISON, J.

This action was brought to recover damages for personal injuries alleged to have been received by plaintiff through the negligence of defendant’s servants. At the close of the evidence in plaintiff’s behalf the trial court sustained a demurrer thereto, whereupon plaintiff took a non-suit with leave. After-wards, as shown by the bill of exceptions, the motion to set aside the non-suit and grant a new trial was overruled and plaintiff appealed.

The record proper, as shown by the abstract, only contains the appointment of a next friend and the pleadings in the cause. The record proper does not show that any motion to set aside the non-suit and grant a new [689]*689trial was ever filed. Nor does it show that a hill of exceptions was filed, or that a judgment was rendered, or that a.n affidavit for appeal was made, or that an appeal was granted. These things are shown in the bill of exceptions. But they are not matters of exception and are not proven by a statement in the bill. They should have been made to appear in the record proper. This has been ruled so frequently and uniformly by the Supreme Court and each of the Courts of Appeal that it is not necessary to do more than to state the defects. The appeal will be dismissed.

All concur.

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Bluebook (online)

106 S.W. 1117, 127 Mo. App. 688, 1908 Mo. App. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downs-v-hammond-packing-co-moctapp-1908.