Mining Co. v. Taylor.

tion, for, in the absence of notice to the contrary, they have a right to assume that the proceedings were legal and regular-that notice was given, that a quorum was present, that the meeting was called in the mode prescribed by the charter or by-laws, etc."

In the case at bar the contract recited that it was made by authority of the board of directors. The real defendants were innocent third parties. In the face of this recitation in the contract, and under the law, the corporation should be estopped from denying the validity of this contract.

III. Indeed the trial court might have well put his decree upon the doctrine of ratification.

In 10 Cyc. 1073, the doctrine is thus stated: "Where the president of a corporation executes in its behalf, and within the scope of its charter, a contract which requires the concurrence of the board of directors, and the board, knowing that he has done so, does not dissent within a reasonable time, it will be presumed to have ratified the act."

The contract involved here was within the scope of the plaintiff's charter. No contention is made to the contrary. Such act of the president and secretary in this case was known to the corporation through its directors for more than five months. Under the circumstances of this case that is a reasonable time. in which to disown the act of the officers, even if such act was not fully authorized. This delay upon the part of the corporation amounts to acquiescing in and ratifying the unauthorized contract. We need not go further into other questions urged and elaborately briefed.

The judgment nisi is a righteous one, and should be and is affirmed. All concur.

APPEAL: Motion for New Trial: Omitted from Bill of Exceptions: Amendment in Circuit Court. Nothing is for consideration except the record proper, where appellant, after respondent had filed his brief asserting that the abstract shows no motion for a new trial and that no call for one appears in the bill of exceptions, appeared in the circuit court and, by leave, amended his bill of exceptions by inserting therein the motion for a new trial. A defective abstract or bill of exceptions cannot be cured in that way after respondent has filed his brief raising the point.

Appeal from Jackson Circuit Court.-Hon. W. O. Thomas, Judge.

AFFIRMED.

Haff, Meservey, German & Michaels, S. D. Newkirk and Edwards & Bryan for respondents.

(1) No motion for a new trial is preserved in the bill of exceptions, nor is there a call for one; therefore, there is nothing but the record proper before the court. Sec. 2083, R. S. 1909; State v. Griffin, 98 Mo. 672; Arnold v. Boyer, 108 Mo. 310; Ryan v. Growney, 125 Mo. 474; State v. Revely, 145 Mo. 660; Phillips v. Jones, 176 Mo. 328; State v. Herron, 199 Mo. 159; Blanchard v. Dorman, 236 Mo. 416; Rose v. Township Board, 163 Mo. 396; State v. Ruck, 194 Mo. 428; Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Betzler v. James, 227 Mo. 387; Scaggs v. Ins. Co., 94 Mo. App. 88; Walker v. Vaughn, 143 Mo. App. 657; Coy v. Landers, 146 Mo. App. 413; Pearson v. O'Connor, 151 Mo. App. 169; Woodward

Realty Co. v. Brewing Co.

v. Ins. Co., 156 Mo. App. 244. (2) No error in the record proper is assigned, and there is no such error; therefore the judgment must be affirmed. Sec. 650, R. S. 1899; Summet v. Realty & Brokerage Co., 208 Mo. 501; Noble v. Brinson, 231 Mo. 640.

New & Krauthoff and M. H. Winger for appellant.

66

(1) The trial court had power to cause the bill of exceptions to be amended so that the same shall speak the truth and contain the motion for new trial. R. S. 1909, Sec. 2120; Darrier v. Darrier, 58 Mo. 233; Baker v. Railroad, 122 Mo. 546; Ross v. Railroad, 141 Mo. 393; State v. Libby, 203 Mo. 596; Althoff v. Transit Co., 204 Mo. 172; Reed v. Colp, 213 Mo. 577. If it be true, as ruled in the cases, that it is the exception to the overruling of the motion for a new trial which gives the motion life and vitality for the purposes of appeal, and if the exception can be inserted in the bill of exceptions by way of amendment based on 'some paper in the case" why cannot the very document itself, which the exception thus preserves, be inserted? State v. Logan, 125 Mo. 22; Noble v. Brinson, 231 Mo. 643. (2) The power to amend the bill of exceptions is continuous in its nature and not lost by lapse of time. Loring v. Groomer, 110 Mo. 639; Mill Co. v. Sugg, 142 Mo. 360; State v. Gordon, 196 Mo. 196. To say that this court cannot consider the amendment to the bill of exceptions because it appears for the first time in a supplemental abstract which was presented for filing on the day the case was set for hearing is to read into the law of amendments a condition that such amendment cannot be had unless made prior to the time' fixed by the rules of the Supreme Court for the service of the abstract of the record. Baker v. Railroad, 122 Mo. 546; Ross v. Railroad, 141 Mo. 393.

Realty Co. v. Brewing Co.

WOODSON, J.-This is an action in ejectment instituted in the circuit court of Jackson county by the plaintiff against the defendant, to recover the possession of the west five feet of lot one hundred and eighty-seven in Ross & Scarritt's Addition, an addition in Kansas City, Missouri.

The petition was in the usual form, and the answer admitted possession, sets up the Statutes of Limitations as a bar and pleads an estoppel in pais, and asks that the rights and interest of the parties be ascertained and determined under the provisions of Sec. 2535, R. S. 1909, same as Sec. 650, R. S. 1899. The reply was a general denial.

A trial was had and a judgment was rendered in favor of the defendants and the plaintiff appealed the cause to this court.

I. At the outset of this case, we are confronted with the contention of counsel for respondents, to quote: "No motion for a new trial is preserved in the bill of exceptions, nor is there a call for one; therefore, there is nothing but the record proper before the court."

This contention is not controverted by counsel for appellant, but is conceded by counsel appearing in the circuit court of Jackson county and filing in the cause a motion to amend the bill of exceptions filed therein, by inserting in said bill the motion for a new trial, which motion, over the objections and exceptions of respondents, was by the court sustained.

After said amendment had been made, counsel for appellant presented to this court a certified copy of the record of said amendment and ask leave to file the same in the cause, in this court, to which counsel for respondents object.

The motion to amend the bill of exceptions was filed in the circuit court of Jackson county, and all the subsequent procedures had thereon were had, after

Spindle v. Hyde.

counsel for respondents filed their brief in this court, raising the point that no motion for a new trial had been preserved in the bill of exceptions.

Upon this showing it is apparent that the bill of exceptions, the proper repository of the motion for a new trial, is not only defective in that particular, but the abstract of the record filed in this court, under the statute and rules of this court, must be and is defective in that regard also.

That being true, according to the repeated rulings of this court, there is nothing before us for determination, except the record proper. [Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442; Betzler v. James, 227 Mo. 375; Blanchard v. Dorman, 236 Mo. 416.]

II. While counsel for appellant have assigned no error appearing upon the record proper, nevertheless, we have taken the precaution to examine it carefully, and by so doing we failed to find any.

Therefore, according to the following authorities,
Summet v. City

the judgment should be affirmed:

Realty Co., 208 Mo. 501; Noble v. Brinson, 231 Mo.

640.

It is so ordered. All concur.

KATE SPINDLE V. LUCIUS D. HYDE and WALTER E. HYDE, Appellants.

Division One, December 24, 1912.

1. DECREE: Not Responsive to Pleadings: Alleging Faudulent Sheriff's Sale: Invalid as Homestead. Where the petition charged that a sheriff's sale and deed of real estate to one brother belonging to another was fraudulent as contrivances between them to hinder and delay existing and subsequent