Kansas City, Clinton & Springfield Railway Co. v. Carlisle

94 Mo. 166

• Court: Supreme Court of Missouri
• Decided: October 15, 1887
• Status: Published

Opinion

Norton, 0. J.

The plaintiff, being a railroad corporation, instituted procéedings in vacation before the judge of the circuit court within and for Henry county to condemn certain lands owned by defendants for right of way for its road. .Commissioners were appointed, and in the vacation of the court, on the twenty-eighth of January, 1885, filed their report. On the fourth of February, 1885, plaintiff filed exceptions to the report, on the alleged ground that the damages awarded and allowed by said commissioners were unjust, exorbitant, and excessive. On the second of May, 1885, the cause having been set down for hearing at that 'time, on the said exceptions filed to the report of the commissioners, the plaintiff declined to offer any evidence to the court to sustain the exception, and filed a motion asking the court to award plaintiff a jury to pass upon and determine the amount of damages, to which defendants are entitled for taking the land for right of way, as provided by article 12, section 4, of the constitution.’ The plaintiff still declining to offer any evidence, the said motion for a jury was overruled by the court and judgment rendered confirming the report of the commissioners, and to this action plaintiff excepted and appealed to this •court.

It is conceded that no motion for new trial was filed, and in such cases it has been settled by repeated rulings, that when the attention of the trial court has not been called to alleged errors occurring in the progress of a cause by a timely motion for new trial, that such errors will not be reviewed here, but that our investigation will b.e limited to such questions as are presented and arise on the record proper. Collins v. Saunders, 46 Mo. 389; Bollinger v. Carrier, 79 Mo. 318, and cas. cit.; State ex rel. v. Burckhartt, 83 Mo. 431.

The motion filed asking the court to award a jury to ■assess damages is not a part of the record proper according to the ruling made in- the case of Bateson v. Clark, 37 Mo. 31, where it is said: “ The record proper by law, is the petition, summons, and all subsequent pleadings, including the verdict and. judgment; * * * if any error is apparent on the face of these pleadings which constitute the record, we will reverse the cause whether exceptions were ‘taken or not. Exception is matter which arises wholly from the action of the court in the progress of the trial, as the admission or rejection ■of evidence, the sustaining or overruling some motion, the giving or refusing of instructions,” etc.

This view of the case necessarily leads to an affirmance of the judgment.

All concur, except Ray, J'., absent.