Mackley v. St. Louis Smelting & Refining Co.

139 S.W. 140, 235 Mo. 488, 1911 Mo. LEXIS 110

Opinion

BLAIR, C.

— At the conclusion of appellant’s evidence defendant offered a demurrer thereto. A nonsuit was taken and a motion to set aside was filed. The abstract of the record proper does not show that this motion was overruled, nor that a bill of exceptions was filed. That part of the abstract which purports to set out the matters of exception neither contains nor calls for the motion to set aside the nonsuit. Under these circumstances matters of exception cannot be reviewed. [Wafford v. Railroad, 195 Mo. 211; Nickerson v. Peery, 163 Mo. 77; State ex rel. v. Boyle, 181 Mo. 695; Stark v. Zehnder, 204 Mo. 442; Rotchford v. Creamer, 65 Mo. 48; Stevenson v. Saline Co., 65 Mo. 425; Western Storage and Warehouse Co. v. Glasner, 150 Mo. 426; Shaffer v. Detie, 191 Mo. 377; Jenkins v. Shannon Co., 226 Mo. 187; Wade v. Alexander, 226 Mo. 92; Harper v. Oil Co., 74 Mo. App. 644.]

Error being neither assigned nor apparent on the record proper, the judgment must be affirmed.

Brown, C., concurs.

PER CURIAM.

— The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.