Ellis v. Starr Piano Co.

The foregoing opinion of CAMPBELL, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.

ON MOTION FOR REHEARING.
In motion for rehearing the appellant says that the opinion incorrectly quotes the order of September 19, 1931; that in fact the order made on that day reads:

"Now on this day the motion of J.B. McGilvray to correct the the record in this cause is by the court taken up, fully heard and considered and by the court overruled, to which action and ruling of this court, J.B. McGilvray excepts."

The order, which is set forth in the main opinion, appears in respondent's additional abstract of the record which was timely served and filed. After the additional abstract was served the appellant, five days before the cause was docketed for hearing, without leave, filed an additional abstract of the record and certified copy of the entry in controversy. Neither our rules nor the statute allow appellant to file the additional abstract or the certified copy of the record.

Section 1028, Revised Statutes 1929, provides that if a respondent is dissatisfied with the appellant's abstract he may file additional abstract on his part, and that in case the appellant shall not concur in such additional abstract he shall specify his objections thereto, *Page 1214 in writing, and file the same with the clerk, "and thereupon the clerk of the appellate court shall forthwith issue and send an official order commanding the clerk of the trial court to send such appellate court a certified transcript of that part of the record so in dispute."

Appellant did not proceed as provided in said section 1028, and it was therefore our duty to accept respondent's additional abstract as true. [Schulte v. Hass, 287 S.W. 816, 818.]

In the circumstances the only record (apart from the certified copy of the record entry of the judgment appealed from) which we can consider is appellant's original abstract and respondent's additional abstract. Moreover, the result would not be affected, though the order was in the form claimed by appellant. The motion is overruled. Boyer, C., concurs.