
    CANTWELL’S ADMINISTRATRIX, Respondent, v. CITY OF CASSVILLE, Appellant.
    St. Louis Court of Appeals,
    March 17, 1908.
    APPELLATE PRACTICE: Motion for New Trial: Review in Appellate Court. Where a judgment was rendered on the ninth and a motion for new trial in the cause was filed on the fifteenth of ,the same month, the motion was too late and errors to which exceptions were taken in the progress of the trial cannot be reviewed on appeal.
    
      Appeal from Barry Circuit Court. — Now. Henry G. Pepper, Judge.
    AFFIRMED.
    
      L. F. Jones and E. G. Frost for appellant.
    
      T. D. Steele for respondent.
    The statute on the subject of motions for new trial, section 803, requires that they be filed within four days' after the trial, and the statute is mandatory and a motion filed out of time is a nullity and would not be considered by the appellate court. Bank y. Porter, 148 Mo. 183; Maloney y. Railroad, 122 Mo. 115; St. Joseph y. Robison, 125 Mo. 1; Allen y. Brown, 5 Mo. 323; Welsh y. St. Louis, 73 Mo. 71. Under such circumstances and in such cases it is the same as though an appeal had been taken without filing a- motion for a new trial at all. There is nothing before the court except.the record proper. State ex rel. y. McGowan, 62 Mo. App. 625; Moran y. January, 52 Mo. 523.
   NORTONI, J.

The plaintiff recovered a judgment against the city of Cassville for $200, and the defendant appealed. Since the appeal was perfected, plaintiff has departed this life and the cause now stands revived in the name of his administratrix. It appears the questions presented here are not open for review for the reason they were not brought to the attention of the circuit court by motion for new trial filed within four days after the trial of the cause. By an examination of the abstracts on file, it appears the verdict of the jury was returned and the judgment of the court given on September 9 th. The motion for new trial appears not to have been filed until September 15th, which, of course, was too late. It is provided by section 803, R. S. 1899, sec. 803, Mo. Ann. St. 1906, that all motions for new. trial shall be made within four days after the trial if the term shall so long- continue; and if not, then before the end of the term. Now it appears in this instance the term of the court continued until September 19th, on which date the appeal was granted to this court and time to file bill of exceptions granted. All of the errors complained of in the briefs of counsel relate to matters of exception which occurred on the trial rather than matters appearing on the record proper. In these circumstances, the cause cannot be further revived here for the reason the matters complained of were not called to the attention of the trial court by motion for new trial filed within the time prescribed by the statute and the judgment will therefore be affirmed. It is so ordered. Bland,

Bland, P. J., and Goode, J., concur.  