Wilbrandt v. Laclede Gas Light Co. , 135 Mo. App. 220 ( 1909 )

NORTONI, J.

In this case the plaintiff recovered •in the circuit court and defendant prosecutes the appeal. The defendant requested the court to peremptorily direct a verdict for it on the pleadings and evidence. The instruction was refused, over defendant’s exception, and the sole complaint here relates to the action of the court, in that behalf. The appeal is on the short form, provided for by section 813, Revised Statutes 1899 (sec. 813, Mo. Ann. St. 1906). Although a motion for new trial was filed in due time and overruled by the court, it does not appear that an exception was taken to the action of the court thereon. The law is abundantly settled to the effect that unless an exception be saved and preserved in the bill to the action of the court in overruling a.motion for new trial, it is not permissible for the appellate court to review any question touching the several matters of exception otherwise presented. That is, under such circumstances, the court will not review any matter of exception unless a final exception is preserved and lodged in the bill against the action of the court in overruling the motion for new trial. The following cases are in point: Abbott v. Gillum, 146 Mo. 176; Ross v. Railway, 141 Mo. 390; Danforth v. Railway, 123 Mo. 196; State ex rel. v. Hitchcock, 86 Mo. 231; Bradbury v. Kerns, 115 Mo. App. 99. This rule is strictly followed and rigorously applied even.in criminal cases, notwithstanding our statute commanding the appellate court to examine the record in a criminal cause for error at all events, as will appear by State v. Luttrell, 136 Mo. 25; State v. Murphy, 126 Mo. 526; State v. Harvey, 105 Mo. 316. Although the motion for new trial itself is not a part of the record proper and is wholly out of place when attempted to be exemplified to this court as parcel thereof, the truth is it is equally out of place in the bill of exceptions unless an exception be preserved to the action of the court in overruling the' same. In other words, the action of the court in overruling the motion for a new trial and the motion itself become matter of exception and admissible as such in the bill only by reason of the fact that an exception is preserved thereto. Otherwise the right of the party to complain of the ruling of the court thereon is waived. [State v. Harvey, 105 Mo. 316.] And that an exception was saved and preserved in the bill to the action of the court in overruling the motion, must affirmatively appear on the face of the record presented to the appellate court for review. [State ex rel. v. Hitchcock, 86 Mo. 231; Danforth v. Railway, 123 Mo. 196.] When it fails to affirmatively appear on the face of the record in the appellate court that such exception was saved and preserved in the bill, the court is permitted to review the record proper only for error. [State ex rel. v. Hitchcock, 86 Mo. 231; Bradbury v. Kerns, 115 Mo. App. 99.]

No exception to the ruling of the court in denying a new trial appearing in the record presented for review, we are not permitted to examine the question urged upon the court for consideration. This is true notwithstanding a proper exception is saved and exemplified here as to the action of the court in declining to direct a verdict for defendant.

The record proper is in all respects sufficient, and the judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Goode, J., concur.