delivered the opinion of the court on motion for rehearing.
The opinion already delivered shows that we find it impossible to examine the merits of this controversy for three *278reasons: 1. The motion, which was the foundation of the proceeding, was not incorporated into the bill of exceptions, and the terms of it were material to be considered. 2. Because the bill of exceptions showed that it had not been signed at the term at which the judgment on the motion was rendered, and did show that the motion for a new trial had been overruled at a previous term. 3. Because it appeared that the appeal had been taken at a term subsequent to that at which, according to the recitals in the bill of exceptions, the motion for new trial had been overruled.
We are now asked to grant a rehearing on the ground that our first ruling is in conflict with the recent decision of the supreme court in Allen v. Benton (79 Mo. 165). We had a certified copy of that decision before us, and examined it carefully before our opinion was written, and found that there was nothing in it that overturned, or even touched upon, the rule of practice which has long been settled in this state, that a motion is no part of the record in a cause, unless made so by being incorporated into a bill of exceptions. The defect in the record upon this point alone renders it impossible for us to grant a rehearing.
' An effort is now made to obviate our ruling as to the other two points, by amending the bill of exceptions in the circuit court, so as to conform to what is shown by an affidavit and by a certificate of the clerk of the circuit court touching his minute entries in this cause to have been the fact, namely, that the motion for new trial was not overruled at the February term, as stated in the bill of exceptions, but was continued until the April term. Whether we could, if the difficulty were out of the way which arises from the failure to incorporate the motion into the bill of exceptions, grant a rehearing of the cause, and allow the record to be now amended, may be gravely doubted. The general rule upon which we have acted is, that where an appellant assigns error upon a record, and *279there is a joinder in error, he can not afterwards have the record amended without a showing of diligence on his part. In this case, the appellant brought his own -record to this court, made up in his own way; he assigned errors upon it; the cause was submitted to this court upon it; and after our opinion has been delivered, the appellant seeks to be allowed to amend the record, and to have a rehearing upon the record so amended. To allow this to be done without a showing of some good excuse for not having the record corrected at the proper time, would put a premium upon negligence on the part of counsel, and establish a very loose and mischievous practice. A strong reason why this should not be allowed in the present case, is found in the fact, that before the cause was submitted, namely, on the. 1st of December, 1883, the respondent’s counsel distinctly drew the attention of the appellant’s counsel to this defect of the record, by a motion to strike out the bill of exceptions, on the ground that the same had not been allowed and signed at the term-on which the judgment had been rendered.
The first objection taken in the opinion of the court, to the manner in which the record is made up, precludes us from examining the decision on the merits, and, consequently, from granting a rehearing; but, in overruling the motion, we do not wish to be understood as sanctioning such a practice as would be introduced by amending the record and granting the motion for rehearing, under the circumstances of this case, if that difficulty were out of the way.
The motion for rehearing is accordingly overruled.
All the judges concur.