*323ON MOTION FOR REHEARING.
SMITH, P. J.The point was made in defendant’s brief that the abstract of the record proper did not show that the motion for a new trial was filed. This was overlooked by ns in the consideration of the case on the merits. He has again called onr attention to the matter in his motion for a rehearing.
An examination of the record has disclosed that the objection was well taken. No snch recitals anywhere appears in the abstract of the record proper, though it does appear from the bill of exceptions — but as said by us in Turney v. Ewins, 71 S. W. 543, the filing of it is a matter of record proper and can not be evidenced by the bill of exceptions. The evidence of the filing of it (the motion) must be found in the! abstract of the record proper. Nothing else will do. Kirk v. Kane, 71 S. W. 463; Hill v. Coombs, 93 Mo. App. 264; Crossland v. Admire, 149 Mo. 650; Lawson v. Mills, 150 Mo. 428; Warehouse v. Glasner, 150 Mo. 426.
Accordingly, the judgment heretofore ordered by us to be entered in the cause will be set aside. And as there appears to be no error patent upon the face of the record proper, the judgement of the circuit court, must be affirmed.
All concur.