Regent Laundry Co. v. Goodman

121 S.W. 1082, 142 Mo. App. 716, 1909 Mo. App. LEXIS 290

• Court: Missouri Court of Appeals
• Decided: October 19, 1909
• Status: Published

Opinion

REYNOLDS, P. J.

This action was commenced by attachment and summons. On the trial of the plea in abatement, under the direction of the court, the jury returned a verdict in favor of the defendants and on a trial on the merits, the court instructed that plaintiffs could not recover. They took a nonsuit with leave to move to set the same aside, which motion was duly filed and overruled.

Counsel for respondents make the point that it nowhere appears in the record proper that any term bill, covering the proceedings at the trial of the plea in abatement, was filed and that it nowhere appears in the record proper that a bill of exceptions was filed covering the proceedings at the trial on the merits. An examination of the printed abstract, the case being here on what is known as “short record or transcript,” sustains their claims. All that appears in the abstract, are recitals in the two bills of exception, that they were signed and filed and made of record.

This court and our Supreme Court have held in too many cases to require citation for the education and information of the profession, that a bill of exceptions cannot prove itself and that there must be proper entries, abstracted in the record itself, to establish those facts. Much as we dislike to dispose of a case on what appear as mere technicalities, we are bound by the decisions of our own and of the Supreme Court to do so in a clear case such as this.

Finding no error in the record proper, the judgments of the circuit court on the plea in abatement as well as on the case on its merits must be and are affirmed.

All concur.