Campbell v. Ravold ( 1912 )

NORTONI, J.

This suit originated before a justice of peace and found its way into the circuit court by appeal. In the latter court, defendant prevailed and plaintiff prosecutes an appeal from that- judgment to this court.

We are not permitted to review the merits of the controversy for the reason there is no sufficient abstract of the record proper on file here. Ordinarily, we treat such matters as waived, under the provisions of our Rule 33, which authorizes that, course in event the defective condition of the abstract is not pointed out in accordance therewith within ten days after the service of such abstract; but in this case, it appears defendant has complied with Rule 33 by filing here his objections to the sufficiency of plaintiff’s abstract, and plaintiff has omitted to either supply, or ask leave to supply, such deficiency. In view of the fact that defendant challenged the sufficiency of the abstract, within due time, under Rule 33, and that no move has been made toward rendering it a proper one, the court is bound by controlling decisions of the Supreme Court to decline to examine the argument's advanced for a reversal of the judgment, as they all pertain to matters of exceptions which are to be found alone in the bill of exceptions. The statute (section 2048, Revised Statutes 1909'), provides that the appellant shall, within the proper time, in accordance with the rules, file a printed abstract of the entire record of the cause in this court. Plere no" abstract whatever has been filed and it does not even appearputside of the bill of exceptions that a motion for new trial was filed within four days after the judgment was entered and during that term of court, nor does it appear outside of the bill of exceptions itself that such bill was ever filed or that leave to file the same in vacation was granted by the court. These matters appear in the hill of exceptions itself, however, but that document is not the proper receptacle for matters of record and may not be utilized for the purpose, of vouching its own integrity. A recent decision of our Supreme Court, directly in point, concerning this matter, may be found by reference to the case of Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992, and it is wholly unnecessary to cite other authorities touching the question, for they are numerous. As much as we regret to dispose of appeals on mere tech-, nical grounds, the obligation in this case rests upon us to do so, for the reason defendant complied, within due time, with the provisions of our Rule 33, and plaintiff rested the matter upon an insufficient showing with respect to the record proper.

The cause is here on the short form, consisting of a copy of the judgment and order granting the appeal provided for in section 2048, Revised Statutes 1909, and upon an examination thereof, there appears to be no error on the face of the record proper. For the reasons stated, the judgment should he affirmed. It is so ordered.

Reynolds, P. J., and Caulfield, J., concur.