Mitchell v. Robertson

Missouri Court of Appeals

Mitchell v. Robertson

93 S.W. 871, 117 Mo. App. 348, 1906 Mo. App. LEXIS 67

CourtMissouri Court of Appeals

DecidedMarch 5, 1906

StatusPublished

Cited by2 cases

This text of 93 S.W. 871 (Mitchell v. Robertson) 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

Mitchell v. Robertson, 93 S.W. 871, 117 Mo. App. 348, 1906 Mo. App. LEXIS 67 (Mo. Ct. App. 1906).

Pincite

Opinion

ELLISON, J.

The plaintiff instituted this action by filing a statement before a justice of the peace, wherein he claimed damages for breach of warranty, that two mules sold to him by defendants were “sound and of good Avind.” The breach alleged was that the mules were not of good wind. The plaintiff recovered judgment in the justice’s court, but on appeal to the circuit court the defendants prevailed and plaintiff has brought the case here. The only matters complained of in plaintiff’s brief relate to the instructions and remarks of defendants’ counsel in the course of his argument to the jury. The abstract discloses that no exception was taken to the action taken by the court on the instructions, and they are therefore not open to consideration in this court.

The remarks of counsel, of which complaint is made here, are set out in the motion for new trial, but they do not appear in the bill of exceptions presented in the abstract. The statement in a motion for new trial of something as having occurred at the trial is Nnot proper evidence that it did occur. The matter stated in the motion should also appear in the bill of exceptions. The bill of exceptions stating that a motion for new trial was filed (and setting it out) is not a statement [350]*350that what is therein alleged is true. [State v. Whalen, 128 Mo. 467; State v. Foster, 115 Mo. 448.]

The judgment is affirmed.

All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

ELLISON, J.

The plaintiff instituted this action by filing a statement before a justice of the peace, wherein he claimed damages for breach of warranty, that two mules sold to him by defendants were “sound and of good Avind.” The breach alleged was that the mules were not of good wind. The plaintiff recovered judgment in the justice’s court, but on appeal to the circuit court the defendants prevailed and plaintiff has brought the case here. The only matters complained of in plaintiff’s brief relate to the instructions and remarks of defendants’ counsel in the course of his argument to the jury. The abstract discloses that no exception was taken to the action taken by the court on the instructions, and they are therefore not open to consideration in this court.

The remarks of counsel, of which complaint is made here, are set out in the motion for new trial, but they do not appear in the bill of exceptions presented in the abstract. The statement in a motion for new trial of something as having occurred at the trial is Nnot proper evidence that it did occur. The matter stated in the motion should also appear in the bill of exceptions. The bill of exceptions stating that a motion for new trial was filed (and setting it out) is not a statement [350]*350that what is therein alleged is true. [State v. Whalen, 128 Mo. 467; State v. Foster, 115 Mo. 448.]

The judgment is affirmed.

All concur.

Cite This Page — Counsel Stack

Bluebook (online)

93 S.W. 871, 117 Mo. App. 348, 1906 Mo. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-robertson-moctapp-1906.

Opinion

Related

Cite This Page — Counsel Stack