Nickerson v. Peery

63 S.W. 381, 163 Mo. 77, 1901 Mo. LEXIS 341

• Court: Supreme Court of Missouri
• Decided: May 21, 1901
• Status: Published

Opinion

SHERWOOD, P. J.

Action for damages caused by the fall of a bridge. Defendant Ramsey successfully demurred to the petition. What was then done, whether judgment was entered on the demurrer, or whether plaintiff asked leave to plead over, does not appear. Peery was unsuccessful.with his demurrer; thereupon he answered. Then the cause came on for trial against both defendants. At this juncture, the record makes the following recitals:

“Now, at this day, comes the plaintiff by his attorney, and voluntarily takes nonsuit with leave to move to set the same aside.

“It is, therefore, ordered and' adjudged by the court that the plaintiff take nothing by his writ against the defendants and that the defendants go hence without day and recover of the plaintiff costs in this behalf laid out and expended and have execution therefor.”

And on the same day, to-wit, the said first day of October, 1897, the following other proceeding was had in this cause and entered of record, to-wit:

“Now, at this day, comes the plaintiff herein by his attorneys, and here files his motion to set aside nonsuit in this cause, which said motion was immediately taken up by agreement and considered by the court, and the same was by the court overruled; to which action and ruling of the court in overruling plaintiff’s said motion, plaintiff then and there excepted at the time, and here saves his exceptions.”

What the grounds of this motion were, or why it was overruled, we are not informed. The only way such a motion, or the action of the court thereon, or the exceptions saved to such action, could have been preserved, was by a bill of exceptions.

Recitals In the record proper, do mot, and can not, preserve mere matters of exception. [Newton v. Newton, 61 S. W. Rep. 883; State v. Wear, 145 Mo. loc. cit. 204-5; Nichols v. Stevens, 123 Mo. loc. cit. 119, and cas. cit.; Ryan v. Growney, 125 Mo. loc. cit. 480; State v. Taylor, 134 Mo. loc. cit. 137; State v. Prather, 136 Mo. loc. cit. 25; Critchfield v. Linville, 140 Mo. loc. cit. 192.]

Under this view, the judgment is affirmed.

All concur.