
    WILLIAM SPERLING et al., Respondents v. WILLIAM STUBBLEFIELD, Appellant.
    St. Louis Court of Appeals,
    February 27, 1900.
    1. Appeal: VERDICT: RECORD FAILS TO SHOW THE ENTRY OF JUDGMENT. The record shows that the jury returned a verdict for plaintiff, but does not show any entry of judgment thereon; there being no entry of judgment, no appeal could be taken.
    2. -: -: -: BILL OF EXCEPTIONS SHOWING JUDGMENT, NOT SUFFICIENT. It is not sufficient that the bill of exceptions recites that a judgment was rendered, the judgment is a part of the record, and must appear therein.
    Appeal from the Stoddard Circuit Court. — Hon. John Guthrie IYear, Judge.
    Cause stricken from tue docket.
    
      J. W. Limbaugh for respondents.
    It does not appear from either the transcript or appellant’s abstract that any judgment has been had or entered in this cause in the trial court: Until judgment is had in the lower court, there is nothing before this court, either to affirm or reverse; the appeal is premature and respondent moves that the same be dismissed. 1 R. S. 1889, p. 579, sec. 2246, as amended by Session Acts of 1891, p. 70; and Session Acts 1895, p. 91; Wood v. County Court, 28 Mo. 119; Silvey v. Sumner, 51 Mo. 199; Dale v. Oopple, 53 Mo. 321; Dale v. Wright, 57 Mo'. 110; Conover v. Baldwin, 58 Mo. 508; Pratt v. Perry, 59 Mo. 597; In the matter of Spencer, 61 Mo. 375; Price v. Brown, 63 Mo. 347; State v. Wymer, 79 Mo. 277; Holloway v. Holloway, 97 Mo. 628, on 639; Puller v. Linzee, 100 Mo. 95; Macke v. Byrd, 109 Mo. 487. And it is the duty of this court to dismiss the appeal, though it may be recited in the bill of exceptions that judgment was rendered. In the matter of Spencer, 61 Mo. 375.
    
      Marsh Arnold for appellant.
    (1) As respondent insists that the contract between plaintiffs and Uhde was a lease, then the surrender of the lease must be unequivocal. Kerr v. Simmons, 8 Mo. App. 131; Mathews v. Tobener, 39 Mov 115. (2) But this is personal property, and both before and after the so-called “turning bach”'of the mill to plaintiffs by Uhde, it was both in the possession of Uhde, and under his control. Such “turning back” must be open, notorious and unequivocal, so that the public would not be misled thereby. State ex rel. v. Hall, 15 Mo. App. 298; Huggins v. Ellis, 15 Mo. App. 585; State r. Durant, 53 Mo. App. 193. (3) This tenancy, if any at all, rests not in privity of estate but in privity of contract, and it requires much stronger evidence of a surrender in the latter than in the former case. Jones v. Barnes, 15 Mo. App. 590; Prentisse v. Warne, 10 Mo. 601; Kerr v. Clark, 19 Mo. 132; Livermore v. Eddy, 33 Mo. 517. (1) But, I think, this case was tried upon a wrong theory. The contract between plaintiffs, and Uhde is not a lease, but a conditional bill of sale, and being unrecorded, is void as to bona 'fide purchasers and creditors. Cloth Co. v. Brothers, 61 Mo. App. 381; Peters v. Eeathexstone, 61 Mo. App. 166; Oestex v. Sitlington, 115 Mo. 217. And the fact that the parties thereto called it therein a lease does not make it one. Railroad v. Railroad, 135 Mo. 173. (5) On failure of proof, or where all the evidence fails to show a legal right of recovery, a judgment in favor of a party, upon whom rests the burden of proof, will be reversed and remanded. McAllister v. Williams, 23 Mo. App. 286; Pollock v. Hanauer, 26 Mo. App. 261; “Blackwell v. Adams, 28 Mo. App. 61; üohn v. Nansas City, 108 Mo. 387. ,
   BIGGS, J.

This is an action for tbe conversion of personal property. Tbe jury returned a verdict for plaintiff, but tbe record fails to show that a judgment was entered on tbe verdict. There being no judgment, there could be no appeal. Silvey v. Sumner, 51 Mo. 199; Dale v. Copple, 53 Mo. 321. It is not sufficient that the bill of exceptions recites that a judgment was rendered. Tbe judgment must appear in tbe record. In re Spencer, 61 Mo. 375. Tbe cause will be stricken from tbe docket.

All concur.  