OPINION ON MOTION POR, REHEARING.
ELLISON, J.Plaintiff seeks a rehearing of this and the case of Edwards against this defendant (argued and submitted together) on several grounds. One that the statute construed is directory and not mandatory. This is but a reassertion of the principal.point in the case as orignally presented and which we have disposed of in the opinion. We see no reason for departing from what was there said. We do not regard McClintock v. Bank, 120 Mo. 127, as applicable to the question.
It is next insisted that defendant is precluded by *104its answer from using the statute as a defense in that such defense was not specially pleaded. We are of the opinion that the answer, while not as specific as it should have been, is unquestionably broad enough to admit such evidence. But, if we should concede that it was not, plaintiff’s point would still be untenable, from the fact that evidence was admitted on that head without objection from him. The rule is that though it be necessary to plead a matter by answer, yet if it be not pleaded and evidence is admitted without objection on that account, the failure to plead is considered as waived. Judge Gantt likens such failure to object to instances where a failure to file a reply was not allowed to be raised by the defendant after he had gone through the trial without making that point. Price v. Hallett, 138 Mo. 561; that case was directly affirmed in an opinion by Judge Burgess in McDonnell v. DeSoto Savings Ass’n 175 Mo. 250, 275. The reason of the rule is apparent when it is considered that if objection had been made to th,e evidence the defendant could have elected to amend the answer. Plaintiff relies on Weaver v. Hendrick, 30 Mo. 502, and some other cases, but we consider none of them in point.
It is next urged that we overlooked the points made in the briefs that defendant’s abstract is not sufficient to permit us to examine more than the record proper. That matters of error in the trial are not properly before us for review. The ground of objection stated by plaintiff is that the abstract fails to show the overruling of the motion for new trial and in arrest by entry of the record proper. The overruling of the motion for new trial and exception thereto is fully set out in the bill of exceptions. It has, however, been held by the Supreme Court, and this court, that the filing of a motion for new trial should be shown by the record proper. St. Charles ex rel. v. Deemar, 174 Mo. 122; Western Storage Co. v. Glasner, 150 Mo. 427; Lawson v. Mills, 150 Mo. 428; Crossland v. Admire, *105149 Mo. 650; Hill v. Combs, 92 Mo. App. 242; Turney v. Ewins, 97 Mo. App. 620; McCormack v. Crawford, 98 Mo. App. 319. But allowing that plaintiff intended to include in his objection to the abstract that it also failed to show the motion for new trial was filed, we must still rule the point against plaintiff. Plaintiff himself has relieved the case of that defect or objection. He filed as under the statute he may, an additional abstract and a statement. In the latter he gives a full abstract of the petition, answer and replication. He then states in detail what was shown in evidence by each party; the finding and judgment and the amount thereof and the filing and overruling of the motion for new trial.
A motion for new trial, of course, should be filed, and it should be made to appear by the abstract. But when the appellant fails to make it appear and the respondent concedes, by an affirmative statement, that it was filed, it is all that is necessary. It is not necessary to set out copies of the record entry of filing. The abstract may state the fact in narrative form (State ex rel. v. Smith, 172 Mo. 446, 458) and we can see no reason why the admission by the respondent is not sufficient to supply the omission by appellant. Jurisdiction of the appeal is not based on the abstract. The certificate of the judgment of the trial court certified, as provided by statute, in the basis of the proceedings in the appellate court (State ex rel. v. Smith, 172 Mo. 618), and it seems to us to be entirely competent for the respondent to supply some necessary statement in the appellant’s abstract, by a statement of his own of the matter omitted.
The motion in each case should be overruled.
Broaddus, J., concurs; Smith, P. J., not sitting.