Western Wheel Scraper Co. v. Kolkmeyer Bros.

Missouri Court of Appeals

Western Wheel Scraper Co. v. Kolkmeyer Bros.

91 Mo. App. 286, 1902 Mo. App. LEXIS 267

DecidedJanuary 6, 1902

StatusPublished

This text of 91 Mo. App. 286 (Western Wheel Scraper Co. v. Kolkmeyer Bros.) 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

Western Wheel Scraper Co. v. Kolkmeyer Bros., 91 Mo. App. 286, 1902 Mo. App. LEXIS 267 (Mo. Ct. App. 1902).

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Opinion

ELLISON, J.

— Plaintiff sued defendant on a promissory note, and the trial resulted in defendant’s favor. A motion for new trial and in arrest of judgment were afterwards filed and overruled, and plaintiff took leave to thereafter file a bill of exceptions. But before filing such bill of exceptions the plaintiff moved the court to set aside its orders overruling the motion for hew trial and in arrest and all other orders in relation thereto. The court sustained the motion and plaintiff thereupon took a voluntary nonsuit. Afterwards, on the same day, the defendants filed their motion asking the court to set aside the order sustaining plaintiff’s motion to set aside the order overruling its motion for new trial and in arrest and the order permitting plaintiff to take a nonsuit. This latter motion was overruled, and thereupon defendant’s took their appeal to this court.

The abstract presented by defendants under the statute and rules of court did not show that a bill of exceptions was-preserved and filed of record, so as to thereby become a part of the record. Plaintiff made objection thereto before the beginning of the term at which the -cause was docketed for hearing. When the cause was called for argument, defendants stated that they would file an additional or amended abstract. They have done so, but it discloses .no good reason why the abstract should not have been perfect in the first instance. The reason assigned is that the bill of exceptions was lost or misplaced and was not found until several weeks after the cause was called for hearing in this court. But all that defendants present in their amended abstract is the same that was presented in the original abstract, save that in the amended one the record entry ordering the filing of the bill of exceptions is supplied. The loss of the bill of exceptions could be of no consequence as to a record entry. The finding of the bill of exceptions has not added anything whatever which tends to cure the original defect.

[288]*288In addition to this, defendants should not have permitted the case to be called for argument before asking to supply any part of the record. By provision of rule 5, this can not be done except by consent of the other party. The plaintiff insists on the point made and we must therefore sustain it.

We have, therefore, nothing before us save that part of the record proper which defendants have presented in an abstract. It does not affirmatively disclose any error, and the judgment will therefore be affirmed.

All concur.

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ELLISON, J.

— Plaintiff sued defendant on a promissory note, and the trial resulted in defendant’s favor. A motion for new trial and in arrest of judgment were afterwards filed and overruled, and plaintiff took leave to thereafter file a bill of exceptions. But before filing such bill of exceptions the plaintiff moved the court to set aside its orders overruling the motion for hew trial and in arrest and all other orders in relation thereto. The court sustained the motion and plaintiff thereupon took a voluntary nonsuit. Afterwards, on the same day, the defendants filed their motion asking the court to set aside the order sustaining plaintiff’s motion to set aside the order overruling its motion for new trial and in arrest and the order permitting plaintiff to take a nonsuit. This latter motion was overruled, and thereupon defendant’s took their appeal to this court.

The abstract presented by defendants under the statute and rules of court did not show that a bill of exceptions was-preserved and filed of record, so as to thereby become a part of the record. Plaintiff made objection thereto before the beginning of the term at which the -cause was docketed for hearing. When the cause was called for argument, defendants stated that they would file an additional or amended abstract. They have done so, but it discloses .no good reason why the abstract should not have been perfect in the first instance. The reason assigned is that the bill of exceptions was lost or misplaced and was not found until several weeks after the cause was called for hearing in this court. But all that defendants present in their amended abstract is the same that was presented in the original abstract, save that in the amended one the record entry ordering the filing of the bill of exceptions is supplied. The loss of the bill of exceptions could be of no consequence as to a record entry. The finding of the bill of exceptions has not added anything whatever which tends to cure the original defect.

[288]*288In addition to this, defendants should not have permitted the case to be called for argument before asking to supply any part of the record. By provision of rule 5, this can not be done except by consent of the other party. The plaintiff insists on the point made and we must therefore sustain it.

We have, therefore, nothing before us save that part of the record proper which defendants have presented in an abstract. It does not affirmatively disclose any error, and the judgment will therefore be affirmed.

All concur.

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Bluebook (online)

91 Mo. App. 286, 1902 Mo. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-wheel-scraper-co-v-kolkmeyer-bros-moctapp-1902.