State ex rel. Waggoner v. Leichtman

COX, J.

Action for damages upon attachment bond, trial by jury, verdict for plaintiff for ninety-five dollars, and defendant has appealed.

Plaintiff insists that the errors complained of in this case cannot be reviewed by this court for the reason that the motion for new trial is not preserved in the bill of exceptions.

The motion for new trial is not copied in the bill of exceptions nor is there any direction therein for the *297 clerk to copy the same in tlie transcript. The only reference to the motion for new trial in the bill of exceptions is the following:

“Thereafter, and at the same term, on the - day of September, 1908, and within four days after the trial of said cause, the defendants filed their motion for a new trial in said cause and also a motion in arrest of judgment, as shown by entry of record at the time as appears on pages 10-12 of this abstract: To the overruling of said motions and each of them, the defendants then and there excepted at the time.”

This reference does not amount to a direction to the clerk to copy the motion for new trial. [State v. Revely, 145 Mo. 660, 662 , 47 S. W. 787 .]

The appellant, in his abstract of the record, has copied the motion for new trial supposed to have been filed in this case but the motion for new trial is not a part of the record proper, and the only repository provided by the law for its preservation is the bill of exceptions. Section 864, Revised Statutes 1899, provides, “No exception shall be taken in an appeal or writ of error to any proceedings in the circuit court except such as shall have been expressly decided by such court,” and the only way the appellate court may be informed of what the trial court did to which the appellant took exceptions outside of what may appear in the record proper is the information it gleans from the bill of exceptions filed in the trial court.

Section 866, Revised Statutes 1899, provides as follows: “But it shall not be necessary for the review of the action of any lower court on appeal or writ of error that any pleading, motion, instruction or record entry in the case, or any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk to remain in his custody until after the determination of the cause in the appellate court shall be copied or set forth in the bill of exceptions filed in the lower court; provided the bill of ex *298 ceptions so filed contains a direction to tbe clerk to copy tbe same, and tbe same are so copied into tbe record sent up to tbe appellate court.”

Prom these provisions of tbe statute it is clear that tbe motion for new trial must be copied in tbe bill of exceptions, or tbe bill of exceptions must contain a direction to tbe clerk to copy tbe same, and if neither of these things are done tbe motion for new trial does not become a part of tbe record of tbe case on appeal, and tbe appellate court cannot consider it. This has been so often decided that it is not necessary to multiply authorities in support thereof. [State v. Herron, 199 Mo. 159 , 97 S. W. 878 ; State v. Ruck, 194 Mo. 416, 428 , 92 S. W. 706 ; Coy v. Landers, 125 S. W. 789 .]

No error appearing in tbe record proper, tbe judgment will be affirmed.

All concur.