Ryan-Robinson Commission Co. v. Swift & Co. , 89 Mo. App. 601 ( 1901 )

ELLISON, J.

This action is for the conversion of a lot of cattle. A second amended petition was filed, and on motion of defendant it was stricken out by the trial court. Afterwards, when the cause was called, plaintiff failed to appear and the cause was dismissed for failure to prosecute and judgment rendered for defendant. Afterwards, plaintiff filed a motion to set aside the order dismissing the cause for failure to prosecute. This motion was overruled and plaintiff excepted to the action of the court. The motion, and whatever proceeding was had thereon, whether consisting of evidence by way of excuse, or reason for not appearing to prosecute, are not preserved. Indeed, while exception was taken, no bill of exceptions was asked or allowed. It is necessary in such case, to preserve the rulings complained of by a bill of exceptions. It is clear there is nothing before us for review.

Much has been said here by plaintiff to show error in the court’s action in striking out the amended petition. Exceptions were taken to all the court’s rulings against plaintiff, but none of them were preserved. But plaintiff’s position here is that no exceptions were necessary in the case and that his points of objection appear on the record proper. In answer to this, we will say that plaintiff is not in position here to make such contention. The record shows that his second amended petition was stricken out. It does not show that-plaintiff declined to plead further. It does not show why he did not appear and prosecute. His failure thereafter to prosecute is not connected in any way with the court’s ruling on his second amended petition. The record only shows that, after-wards, plaintiff failed to appear and prosecute, whether from sickness, misunderstanding, or disappointment in the ruling on the petition, is not shown.

It is quite apparent that the judgment must be affirmed.

All concur.