OPINION ON REHEARING.
PER CURIAM.— This cause has been fully reconsidered on a rehearing granted at the instance of plaintiff.
1. At the second hearing plaintiff (respondent) objects to a review of the merits on the ground of alleged defects in the record touching the authentication of the bill of exceptions,
It is insisted that the record itself does not show that the bill was filed. There is this recital by the circuit clerk in his statement setting forth the record proper in this cause, viz.:
“And afterwards, to-wit, and on the seventeenth day of April, 1901, the defendants filed their bill of exceptions in this cause, which is in words and figures as follows, to-wit:
(Then follows the bill).
At the close of the transcript (for this case is here upon a full transcript) the clerk officially certifies the " foregoing ” to be a true and complete copy of the judgment, motion for new trial, affidavit for appeal and " all orders and motions- affecting the saíne” in the case (citing the title of this case).
It is true, as often held, that the record must show that the bill of exceptions was filed, independently, of any recital in the bill itself. Ricketts v. Hart, 150 Mo. 64; Hughes v. Henderson, 95 Mo. App. (K. C.) 312, 68 S. W. 1069. But we consider the entry above quoted to be a sufficient showing of record of the filing of the bill.
2. It is further contended that the extension of time for ninety days to file the bill of exceptions does not appear by the record proper. The reply to this is that the record does not show that when the bill was filed the term at which the motion for new trial was overruled and the appeal was taken had expired. The-record *355already quoted discloses that the hill was filed, April 17, 1901. It also shows that the motion for new trial was overruled, February 6, 1901, and that the appeal was taken and allowed, February 10, 1901. Nothing in the record intimates that the court adjourned for the term before the bill of exceptions was filed, and we can not properly presume an adjournment in the absence of any such showing.
3. It is next contended that no order of continuance of the motion for new trial appears to carry it over from the term when it was filed to that when it was overruled. It was formerly held that such an order of continuance was necessary, but that ruling was disapproved by the Supreme Court on appeal in' the same case. The rule is that the continuance will be presumed in support of the regularity of the trial court’s action in the premises. Givens v. Van Studdiford, 13 Mo. App. (St. L.) 168, and 86 Mo. 149.
4. On the merits of the appeal, the opinion heretofore filed has been modified in some respects and as modified is confirmed and adopted as the opinion of the court. We do not consider that the general principle declared in the Gannon case, 145 Mo. 502, has been discarded or overruled by the Supreme Court, but on the contrary we believe that court adheres to the proposition that it was for’the jury to pass upon the credibility of oral testimony on a disputed issue of fact even when the testimony is not contradicted. That ruling has been repeatedly followed in the appellate courts, and we do not find any decision which can properly be held to overrule it. Hester v. Casualty Co., 78 Mo. App. (K. C.) 511; Overstreet v. Moser, 88 Mo. App. (St. L.) 80; Lesieur v. Zimmerman, 88 Mo. App. (St. L.) 664; Ellis v. Railway, 89 Mo. App. (St. L.) 241; Ward v. Steffen, 88 Mo. App. (St. L.) 576.
The judgment is reversed and the cause remanded for new trial,
all the judges concurring: