State ex rel. Baer v. Mason

Peers, J.,

delivered the opinion of the court.

This is an action upon thé official bond of the sheriff of the city of St. Louis. The plaintiffs recovered judgment below and defendants appeal to this court. The plaintiffs urge and insist upon an affirmance for the following reasons:

*213 “ 6. The judgment below must be affirmed, because the record does not disclose that a motion for new trial was filed within the time required by law, in that the bill of exceptions of the appellants does not state that this motion was filed within four days, but after reciting the verdict of the jury for plaintiffs, merely adds, ‘ and thereupon after verdict,’ etc.

Upon this question the record discloses the following entry as set forth in the bill of exceptions on page 144:

“Thereupon after verdict, the defendants filed the following motion for a new trial.” This is all the bill of exceptions shows as to when the motion for new trial was filed.

An unbroken line of decisions could be cited if necessary to show that the bill of exceptions must affirmatively set forth that the motion for new trial was filed within four days, but in view of a very recent decision by the Kansas City Court of Appeals, in a case almost identical with the one before us, we deem it unnecessary to refer to former cases decided by the courts of this state on this question.

In Demske v. Hunter, 23 Mo. App. 466 , the case referred to, the bill of exceptions recited : ‘ ‘ Thereupon the defendant filed his motion for a new trial,” etc. The only difference between that bill and the one before us lies in the words “ after verdict” being used in this bill after the word “thereupon”. In both cases the word “ thereupon ” is all that is used to indicate the time when the motion is filed: The words “ after verdict” have no significance in this connection, as the motion must be filed after verdict always, whether within the time required by statute or not. Motions for new trial are not filed before the verdict is rendered, but following that event in the trial; hence the words in this bill “after verdict” does not signify that it was within the four days required by law. In Demske v. Hunter, above referred to, the court, speaking through Ellison, J., says: “‘Thereupon’, in the connection *214 here used, may mean immediately, or it may mean by reason of, or in consequence of. That is, by reason of the rendition of the verdict, or in consequence of it, the defendant at some time afterwards filed his motion. The-use of the word ‘thereupon’ without more, does not then make it appear affirmatively that the motion was filed within the time limited by statute. We cannot,, therefore, take notice of the bill of exceptions in this case.” 23 Mo. App. 469 .

On motion for rehearing in the same case, the court adds : “It must be made to appear by the bill ‘that the motion was filed within four days.’ The word ‘ thereupon ’ does not so show it. As defined by lexicographers it may mean that it was within four days or it may mean no fixed period. There is no necessity for experiments in matters of this sort. The date of the filing should have been given or the statement should have been made that it was within the four days allowed by law.” Ibid.

It is not sufficient that the filing of a motion for new trial appears to have been entered on the clerk’s minutes, but such filing, and the date thereof, must be shown by the bill. State ex rel. v. Gaither, 77 Mo. 304 . As the plaintiffs insist upon an affirmance- as above set forth, we can take no further notice of the bill of exceptions in this case.

Seeing no error in the record proper, the judgment will be affirmed.

Thompson, J., concurs ; Rombauer,. P. J. having been of counsel, does not sit in the case.