Cuomo v. City of St. Joseph

Hall, J.

The bill of exceptions was not filed within the time prescribed by the order of the circuit court, granting the appellant leave to file it after the expiration of the term of the court at which the appeal was taken, and hence said bill of exceptions is, in contemplation of law, no bill of exceptions. Rev. Stat., sect. 3656; Holloway v. City of Moberly, 18 Mo. App. 553 , and cases cited; Dale v. Patterson, 63 Mo. 98 ; Baker v. Loring, 65 Mo. 527 ; West v. Fowler, 59 Mo. 40 ; s. c., 55 Mo. 300 .

The record, therefore, does not contain any exceptions taken to the action of the court during the trial, and so far as concerns the trial there is nothing for us to review.

As to the organization of the trial court in the following respects, viz : the selection of a special judge and the empanelling of a jury, the abstract of the record filed by the appellant contained not a word. Prom said abstract of the record we are totally unable to understand anything concerning said organization of the court. By rule fifteen, of this court, the appellant was required to set forth in the abstract of the record so much of the record as was necessary to a full understanding of all the questions presented to this court for decision. The question, then, is, had the appellant the right, under said rule, to set forth in the reply to the *570 abstract and brief filed by the respondents, the record entries concerning said organization of the court, when in the original abstract of the • record no reference was made thereto %

As to a reply, said rule fifteen provides: “And the counsel for appellant or plaintiff'in error may, if he desires, within five days after the service on him of the' respondent’s or defendant in error’s abstract and brief aforesaid, prepare, file and serve a reply thereto, in the manner aforesaid.”

The reply must be in the nature of a reply. It might contain a supplemental abstract of the record for the purpose of contradicting the abstract of the record filed by respondent, or even for the purpose of adding to or explaining the original abstract of the record filed by appellant, but it could not contain a part of the record not mentioned in said original abstract of the record for the purpose of raising as error that to which no reference had theretofore been made by either the appellant or respondent. The appellant, in its original abstract of the record, set forth so much of the record as. showed a history of the trial, and in its brief asked for a reversal of the judgment, on account of errors that occurred in the trial. The abstract of the record contained nothing concerning the organization of the court the respondents’ abstract contained nothing in relation thereto; the appellant, in its reply could not, under rule fifteen, set forth the record concerning the organization of the court, and ask for a reversal of the judgment, not because there had been error in the trial, but because there had been no trial. An appellant’s original abstract of the record must not show grounds of one error and the appellant’s reply the grounds of another error. The reply cannot contain an abstract of the record showing a new and distinct ground of error. An appellant can obtain relief only on the grounds of error made to appear from the original abstract of the record. *571 The organization of the court in the respects named .is not, therefore, for review by us.

It follows that there is nothing before us for our determination, the appellant having made no other points than those alluded to, and that the judgment of the circuit court must be affirmed.

All concur.