State v. Wilson , 44 Mo. App. 136 ( 1891 )

Biggs, J.

Upon the record now before us we cannot consider what purports to be a bill of exceptions. By numerous decisions of this court, and also of the supreme court, the rule of practice has been established that, where a bill of exceptions is filed in term time, there must be some recital in the record proper that it is filed ; and that, when it is filed in vacation, there must be a recital of record in term time that leave was given by the court to file it in vacation, and also a file mark or recital by the clerk showing that it was filed within the time granted. Dinwiddie v. Jacobs, 82 Mo. 195 ; Pope v. Thomson, 66 Mo. 661 ; Eau Claire Lumber Co. v. Howard, 76 Mo. 517; McGrew v. Foster, 66 Mo. 30; Fulkerson v. Houts, 55 Mo. 301 ; Carter v. Prior, 78 Mo. 222 ; State ex rel. v. Leslie, 83 Mo. 60 ; Roesler v. Bank, 88 Mo. 565 ; State v. McNamara, 100 Mo. 105. In this case there is nothing in the record proper showing that the paper which purports to be a bill of exceptions was filed in term time, or that leave was given to file it in vacation. The paper only contains a file mark by the clerk. That is not sufficient.

As no point is made on anything growing out of or appearing from the record proper, we will have to affirm the judgment. All the judges concurring, it is so ordered.