Goodson & Wright v. Bevan

89 Mo. App. 162, 1901 Mo. App. LEXIS 136

• Court: Missouri Court of Appeals
• Decided: May 6, 1901
• Status: Published

Opinion

ELLISON, J.

This is an action of trespass wherein the plaintiffs had judgment- in the circuit court and defendants appeal.

It is recited in the bill of exceptions that an appeal was .allowed and time given to file a bill of exceptions, and that a bill of exceptions was afterwards-presented to the judge praying “that the same may be signed and sealed and become a part of the record, which is accordingly done.” Here follows the ■signature of the trial judge.

The abstract does not show a record entry or order extending the time for filing the bill of exceptions. Neither is there a record entry or order filing the bill of exceptions. These recitals in the bill of exceptions will not supply the record proper. In the case of Schoenberg v. Heyer, decided this term, we said: “A bill of exceptions can not prove itself;” and: “Though a bill of exceptions is allowed, signed and sealed by the judge it does not become a part of the record in the cause until it is not only ordered to be filed, but filed; and all this must appear from the record proper.” That case cites authority showing that the rulings of the different appellate courts ■of the State have been uniform on this question.

But plaintiffs further insist that if it should be conceded that the abstract could be interpreted as showing the necessary record entries, it would not be justified by the full transcript on file in this court. In referring to the transcript we find no record entry whatever as to granting an appeal, or as to extending or filing a bill of exceptions. - The only record entry shown is that made in vacation filing and approving the appeal bond. We are therefore left without any foundation from which to attack the judgment and it is accordingly affirmed.

All concur.