
    D. D. BATES, Adm., etc., Appellant, v. RUTH & MENGAL REALTY COMPANY et al., Respondents.
    St. Louis Court of Appeals,
    April 23, 1901.
    1. Appeal: NO BILL OF EXCEPTIONS. There is nothing in the record outside of the bill of exceptions to show that it was ever filed, no entry or minute of the clerk, and hence, it can not be considered.
    2. -: MOTION FOR NEW TRIAL: NOT FILED WITHIN FOUR DAYS. Neither does it appear that the motion for a new trial was filed inside of four days after the rendition of the judgment, which is fatal.
    Appeal from Butler Circuit Court. — Hon. J. L. Fort, Judge.
    Affirmed.
    
      Dinning, Hamel & Dinning for respondent.
    
      (1) The alleged bill of exceptions forms no part of tbe record of tbis cause, for tbe reason that tbe same was not filed witbin tbe time given by tbe court in wbicb tbe same should be filed. Eicketts v. Hart, 150 Mo. 681; Eimel v. Hayes, 83 Mo. 200; State v. Eolley, 135 Mo. 678; Finlay v. Gill, 80 Mo. App. 459. Tbe so-called bill of exceptions in tbis cause does not sbow affirmatively that plaintiff’s motion for a new trial was filed witbin four days (intervening Sunday excepted) after tbe rendition of tbe judgment in said cause. Bollinger v. Carrier, 79 Mo. 319. (2) Tbe Supreme Court, speaking on tbis subject says: “Tbe record must sbow affirmatively that tbis motion (for a new trial) vfas filed witbin tbe prescribed four days.” Welch v. St. Louis, 73 Mo. 71; Moran v. January, 52 Mo. 523; State v. Marshall, 36 Mo. 400; State v. Brooks, 92 Mo. 542; State v. Arnold, 54 Mo. App. 660; Beckmann v. Ins. Co., 49 Mo. App. 604. (3) Tbe so-called bill of exceptions does not sbow that any exception was taken by appellant in overruling bis motion for a new trial. It has been uniformly held in tbis State that unless an exception be taken and preserved by bill of exceptions to tbe action of tbe trial court in overruling a motion for new trial, there is nothing for tbe appellate court to review except tbe record proper. E. S. 1899, sec. 864; State v. Gray, 149 Mo. 459; Eoss v. Eailroad, 141 Mo. 395; State v. Murray, 126 Mo. 526; Dunfortb v. Eailroad, 123 Mo. 198; Taylor v. Switzer, 110 Mo. 410.
   GOODE, J.

Tbis suit, wbicb is one to set aside an alleged fraudulent satisfaction of a deed of trust and' foreclose tbe same, is in no condition to be reviewed as tbe record stands. Tbe judgment was rendered at tbe February adjourned term of tbe circuit court of Butler county. Tbe motion for a new trial was overruled on tbe nineteenth day of May. The affidavit for appeal was sworn to tbe twenty-sixth day of tbe same month. When it was filed is not shown. The appeal was granted and ninety days given in which to file the bill of exceptions. The record is entirely silent as to when this order was made bnt it must have been before the first Monday in June, because another term of court was due then. . The bill of exceptions itself recites that it was filed in vacation on the second day of October. The most liberal inference in regard to when the order was entered allowing ninety days in which to file it, could not extend the time to near the day when it is recited to have been filed.

But there is nothing in the record outside of the bill to show it was ever filed, no entry or minute of the clerk. We, therefore, are precluded from considering it. Ricketts v. Hart, 150 Mo. 64; Rimel v. Hayes, 83 Mo, 200; State v. Rolley, 135 Mo. 677; Finlay v. Gill, 80 Mo. App. 458; State v. Harris, 121 Mo. 445; Walser v. Wear, 128 Mo. 652.

Neither does it appear that the motion for a new trial was filed inside of four days after the rendition of the judgment, which is likewise fatal. Bollinger v. Carrier, 79 Mo. 318; Bruns v. Capstick, 62 Mo. App. 57; State ex rel. v. Mason, 31 Mo. App. 211. Nor does it appear that the appellant saved any exception to the court’s action in overruling said motion, which omission made utterly futile the previously saved exceptions. R. S. 1899, see. 864; State v. Gray, 149 Mo. 458; Ross v. Railroad, 141 Mo. 390; State v. Murray, 126 Mo. 526; Danforth v. Railroad, 123 Mo. 196; Taylor v. Switzer 110 Mo. 410; State v. Gilmore, 110 Mo. 1; State ex rel. v. Hitchcock, 86 Mo. 231; McIrvine v. Thompson, 81 Mo. 647; St. Joseph v. Ensworth, 65 Mo. 628; Ross v. Ross, 83 Mo. App. 330. No error is assigned, nor appears, except those which must have been saved by timely exceptions.

The judgment is therefore affirmed.

All concur.  