
    McCarthy v. McGinnis, Appellant.
    
    Failure to incorporate the motion for new trial in the hill of exceptions prevents inquiry in this court into anything which occurred during the progress of the trial, and which is necessary to be preserved in the bill of exceptions, equally as much in cases in equity as at law.
    
      Appeal from St. Louis Court of Appeals.
    
    Affirmed.
    The defendant, McGinnis, having recovered of the plaintiff's a certain lot in ejectment, the plaintiffs brought this suit under the statute, (R. S., § 2259,) to recover the value of improvements made on the lot in good faith, and also to enjoin the defendant from taking possession under his judgment in ejectment until the value of the improvements should be ascertained. Plaintiffs had judgment in the circuit court and in the court of appeals.
    
      James Carr and Martin & Lackland for appellant.
    
      T. J. Rowe for respondents.
   Sherwood, J.

It is conceded that the motion for a new trial is not incorporated in the bill of exceptions This is a fatal defect, so far as concerns anything which occurred during the progress of the trial and necessary to be preserved in the bill of exceptions. And our statute regarding practice in civil cases recognizes no distinction in this regard between proceedings of an equitable nature and those which seek the enforcement of some right strictly legal. We do not feel authorized to make a distinction in this regard which the legislature have not made, and thus engraft upon the statute an unwarranted exception. Discovering no error in the record proper, we affirm the judgment.

All concur.  