Perry v. Stephens

Missouri Court of Appeals

Perry v. Stephens

139 S.W. 1180, 159 Mo. App. 690, 1911 Mo. App. LEXIS 613

DecidedSeptember 30, 1911

StatusPublished

This text of 139 S.W. 1180 (Perry v. Stephens) 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.

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Perry v. Stephens, 139 S.W. 1180, 159 Mo. App. 690, 1911 Mo. App. LEXIS 613 (Mo. Ct. App. 1911).

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Opinion

NORTONI, J.

This is an action in trover as for conversion. Plaintiff recovered and defendant prosecutes the appeal.

The subject of the controversy is a gasoline launch valued at $300 and engaged in the coast trade on the Mississippi river. ^ A jury was waived and the case tried before the court without instructions being requested or given. There appears to be substantial evidence in the record tending to support the finding and judgment that plaintiffs owned the boat, that defendants converted it and that its value was $300.' But [691]*691be this as it may, the matter is not for consideration here, as the bill of exceptions reveals no exception to the action of the court in overruling the motion for a new trial. In this state of affairs, there is naught open for review here save the record proper and this is not challenged. Indeed, it is conceded to be sufficient. Under the established rule of decision, we are not permitted to review the merits of an appeal unless the bill of exceptions reveals the fact that an exception was saved to the action of the court in overruling the motion for a new trial and such must appear, too, in the abstract of the bill of exceptions filed here. An order of the court copied from the record and incorporated in the abstract before ns sets forth the fact that the motion for a new trial was submitted to the court and overruled by it and that an exception was saved by defendant to such ruling. But this is not sufficient; for exceptions are not thus exemplified under our practice. Exceptions are not part of the record proper and have no place therein. Such may only be saved for review in the bill of exceptions which alone is their proper repository. The point has been frequently decided as will appear by the cases collated in Wilbrandt v. Laclede Gas Light Co., 135 Mo. App. 220, 115 S. W. 497.

For the reasons stated, the judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Caulfield,, J., concur.

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NORTONI, J.

This is an action in trover as for conversion. Plaintiff recovered and defendant prosecutes the appeal.

The subject of the controversy is a gasoline launch valued at $300 and engaged in the coast trade on the Mississippi river. ^ A jury was waived and the case tried before the court without instructions being requested or given. There appears to be substantial evidence in the record tending to support the finding and judgment that plaintiffs owned the boat, that defendants converted it and that its value was $300.' But [691]*691be this as it may, the matter is not for consideration here, as the bill of exceptions reveals no exception to the action of the court in overruling the motion for a new trial. In this state of affairs, there is naught open for review here save the record proper and this is not challenged. Indeed, it is conceded to be sufficient. Under the established rule of decision, we are not permitted to review the merits of an appeal unless the bill of exceptions reveals the fact that an exception was saved to the action of the court in overruling the motion for a new trial and such must appear, too, in the abstract of the bill of exceptions filed here. An order of the court copied from the record and incorporated in the abstract before ns sets forth the fact that the motion for a new trial was submitted to the court and overruled by it and that an exception was saved by defendant to such ruling. But this is not sufficient; for exceptions are not thus exemplified under our practice. Exceptions are not part of the record proper and have no place therein. Such may only be saved for review in the bill of exceptions which alone is their proper repository. The point has been frequently decided as will appear by the cases collated in Wilbrandt v. Laclede Gas Light Co., 135 Mo. App. 220, 115 S. W. 497.

For the reasons stated, the judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Caulfield,, J., concur.

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139 S.W. 1180, 159 Mo. App. 690, 1911 Mo. App. LEXIS 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-stephens-moctapp-1911.

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