#### J. B. PUGSLEY, Respondent, v. THE OZARK COOPERAGE & LUMBER COMPANY, Appellant.

Springfield Court of Appeals,

February 6, 1911.

1. APPELLATE PRACTICE: Motion for New Trial: Bill of Exceptions. The abstract of a bill of exceptions in referring to the motion for a new trial contained the following: “which said motion is in words and figures as follows, to-wit: (See Ante, pp. 17-18).” The motion for a new trial was set out in full in the abstract of the record proper at pages 17 and 18. Held, that the motion for new trial should have been copied in the bill of exceptions and that mere reference to the motion was not sufficient; that the record proper was not the proper depository for the motion for the new trial.

2. -: -: Record Proper. In the absence of a motion for a new trial, only the record proper can be examined for error.

Appeal from St. Louis City Circuit *Court.*— Hon. *George G. Hitchcock,*Judge.

Affirmed.

*George B. Webster*for appellant.

*J. M. Lashley*and *Glendy B. Arnold,*for respondent.

NIXON, P. J.

This suit was based on a written contract of sale, executed in the State of Arkansas, and was brought by tbe vendor (respondent) to recover of *387the appellant the purchase price of 400,000, six foot, coiled, elm barrel hoops, at $7,25 a thousand. The petition was in two counts. Upon trial before a jury, the respondent recovered a judgment on the second count of its petition in the sum of $507.50', whereupon defendant appealed to the St. Louis Court of Appeals on the short form and the cause has been transferred to this court. Both parties have filed briefs in this court, thus eliminating the question of the jurisdiction of this court to determine the case.

Respondent insists uppn its contention that appellant’s abstract is defective in several particulars, and in its brief claims, among other things, that as no motion for new trial is copied in the bill of exceptions, contained in appellant’s abstract, there are no exceptions, presented to this court for review. In the abstract of the bill of exceptions, we find the following: “And afterwards, to-wit, upon the 18th day of November, A. D. 1909, at the same term of court and within four days after the rendition of said verdict, defendant filed its motion for a new trial, which said motion is in words and figures as follows, to-wit: (See ante, pp. 17-18).” The motion for new trial is set out in full in the abstract of the record proper at pages 17 and 18.

In the case of State ex rel. v. Leichtman, 130 S. W. 94, we said: “The appellant, in his abstract of the record, has copied the motion for new trial supposed to have been filed in the case; but the motion for new trial is not a part of the record proper, and the only repository provided by the law for its preservation is the bill of exceptions.”

In an early case, a motion for a new trial was in fact filed, but it was set out in the record proper and reference made thereto in the bill of exceptions by citing the page on which it would be found. It was held that the exceptions could not be considered as the motion for new trial was not a part of the record proper, and could only become a part of the record by being *388incorporated bodily in the bill of exceptions; and tbe mere reference to the motion was held insufficient. [Story & Camp v. Ragsdale, 30 Mo. App. 196, and cases cited. See, also, State v. Revely, 145 Mo. 660, 47 S. W. 787; State v. Herron, 199 Mo. 159, 97 S. W. 878.]

In tbe absence of a motion for new trial, we are permitted to examine only tbe record proper for error. [Coy v. Landers, 146 Mo. App. l. c. 426, 125 S. W. l. c. 794.] Tbe petition, answer and reply we find in tbe abstract. , In tbe clerk’s office we find a certified copy of a judgment for $507.50. Tbe petition states a cause of action and tbe judgment is good upon its face.

In tbe case of Harding v. Bedoll, 202 Mo. l. c. 629, 100 S. W. 638, tbe Supreme Court said that tbe rules of appellate practice were established for tbe speedy and orderly determination of tbe work of appellate courts, and, continuing in this vein, said: “They are reasonable, and if examined by counsel, can readily be followed. Tbe constructions of tbe rules have been very liberal, but should not be made so liberal as to annul the rules themselves. Nor can tbe court give a strained construction in one case and a more liberal one in another. Tbe application of tbe rules, as made by the courts, is without respect to- tbe case or tbe person. In some instances, neglect or oversight of counsel may work a hardship upon clients,' but this case can furnish no reason for the construction of tbe rules such as should practically annul them. These rules apply to all persons, all cases and all representatives of clients, alike, and must be construed in one case just as they have been or will be in another, irrespective of tbe case, tbe parties or their counsel.” It is with tbe greatest reluctance that we are compelled to dispose of appeals- -in this manner, but tbe opposite party has asserted its rights and they cannot be ignored. We are in entire accord with tbe tendency to so liberalize and broaden tbe rules concerning abstracts, as not to deprive litigants of a review of tbe merits of their cases in the appellate court, *389and to this end we have amended our rules to the utmost. Our amended rules are broad enough to protect the appellant as to other defects claimed by respondent to exist, but as to the defect we have discussed, we have no alternative under the decisions of the Supreme Court.

Finding no error in the record proper, the judgment is affirmed.

All concur.