Shemwell v. McKinney

114 S.W. 1083, 214 Mo. 692, 1908 Mo. LEXIS 261

• Court: Supreme Court of Missouri
• Decided: November 25, 1908
• Status: Published

Opinion

WOODSON, J.

This suit was. brought in the circuit court of Ripley county, and had for its object the quieting the title to certain real estate described in the petition, which was in the usual and approved form.

The answer was quite lengthy and set up various defenses, all of which were demurred to by the plaintiff, excepting the plea of the ten and thirty years’ statutes of limitation. The demurrer was sustained, and the respondent declined to plead further, and went to trial upon the question of limitation.

A trial was. had, and after respondent had introduced all his evidence, he took a nonsuit as to a portion of the land sued for, and recovered judgment for a part of the balance sued for, while the judgment for the remainder was for the appellant. Appellant has appealed from the judgment to this court.

The abstract of the record proper does not show an affidavit for an appeal in this cause, nor does it state the substance of any such an affidavit.

That omission prevents this court from acquiring jurisdiction of the cause. [State ex rel. v. Broaddus, 210 Mo. 1; Insurance Co. v. Hurst, 129 Mo. App. 627; Greenwood v. Parlin & Orendorff Co., 98 Mo. App. l. c. 408; Pennowfsky v. Coerver, 205 Mo. 135.]

Nor does the abstract of the record proper show that the bill of exceptions was filed in time, or an order of record granting leave to file it in vacation.

This failure would prevent us from considering anything but the record proper, even though we had jurisdiction to hear the cause; but as. we have no jurisdiction thereof, as before stated, the appeal is dismissed.

All concur, except Valliant, P. J., absent.