Perkins v. Bakrow

Missouri Court of Appeals

Perkins v. Bakrow

39 Mo. App. 331, 1890 Mo. App. LEXIS 85

CourtMissouri Court of Appeals

DecidedFebruary 18, 1890

StatusPublished

Cited by1 cases

This text of 39 Mo. App. 331 (Perkins v. Bakrow) 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

Perkins v. Bakrow, 39 Mo. App. 331, 1890 Mo. App. LEXIS 85 (Mo. Ct. App. 1890).

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Opinion

Biggs, J.,

delivered the opinion of the court.

This action is upon a voluntary subscription, made by the defendant to aid in the construction of an opera [332]*332house in the city of Springfield. The suit was begun before a justice of the peace, and judgment was entered for defendant. The case was appealed to the circuit court, and, on a trial de novo, the defendant again had judgment. From that judgment the plaintiff has again appealed.

It is impossible for us in the condition of the record to review this case. In the first place, the document embodied in the record, and designated by the clerk as the bill of exceptions, does not purport to be signed by the presiding judge. The plaintiff’s motion for a new trial is incorporated by the clerk in that portion of the transcript containing the record proper. The briefs filed by counsel set forth instructions given and refused by the court. We find no intimation in the record that any instructions were either asked or given.

In order that a bill of exceptions may become a part of the record, it must be signed by the judge. No exceptions or rulings made during the course of the trial can be reviewed by an appellate court unless preserved in a bill of exceptions, which has been duly authenticated and made a part of the record by the trial judge. Beven v. Powell, 11 Mo. App. 216; McNeil v. Ins. Co., 30 Mo. App. 306; Puller v. Thomas, 36 Mo. App. 105.

Another well-established rule is that motions for new trial form no part of the record proper, and must be embodied in the bill of exceptions. Kohn v. Lucas, 17 Mo. App. 29; State v. Gee, 79 Mo. 313. The incorporation of such a motion by the clerk in the record proper in no way aids the appellant’s case, for the reason that the clerk has no authority to make any such paper a part of the record. United States v. Gamble, 10 Mo. 459; Christy's, Adm'r, v. Myers, 21 Mo. 112; Jefferson City v. Opel, 67 Mo. 394; Kohn v. Lucas, supra.

The judgment in this case will have to be affirmed.

All the judges concur.

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Biggs, J.,

delivered the opinion of the court.

This action is upon a voluntary subscription, made by the defendant to aid in the construction of an opera [332]*332house in the city of Springfield. The suit was begun before a justice of the peace, and judgment was entered for defendant. The case was appealed to the circuit court, and, on a trial de novo, the defendant again had judgment. From that judgment the plaintiff has again appealed.

It is impossible for us in the condition of the record to review this case. In the first place, the document embodied in the record, and designated by the clerk as the bill of exceptions, does not purport to be signed by the presiding judge. The plaintiff’s motion for a new trial is incorporated by the clerk in that portion of the transcript containing the record proper. The briefs filed by counsel set forth instructions given and refused by the court. We find no intimation in the record that any instructions were either asked or given.

In order that a bill of exceptions may become a part of the record, it must be signed by the judge. No exceptions or rulings made during the course of the trial can be reviewed by an appellate court unless preserved in a bill of exceptions, which has been duly authenticated and made a part of the record by the trial judge. Beven v. Powell, 11 Mo. App. 216; McNeil v. Ins. Co., 30 Mo. App. 306; Puller v. Thomas, 36 Mo. App. 105.

Another well-established rule is that motions for new trial form no part of the record proper, and must be embodied in the bill of exceptions. Kohn v. Lucas, 17 Mo. App. 29; State v. Gee, 79 Mo. 313. The incorporation of such a motion by the clerk in the record proper in no way aids the appellant’s case, for the reason that the clerk has no authority to make any such paper a part of the record. United States v. Gamble, 10 Mo. 459; Christy's, Adm'r, v. Myers, 21 Mo. 112; Jefferson City v. Opel, 67 Mo. 394; Kohn v. Lucas, supra.

The judgment in this case will have to be affirmed.

All the judges concur.

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