Conservatism in Legal Procedure in the trial court, notwithstanding it was in fact done. Refining beyond this, it is held that some things done in the lower court are matters of record and that others are matters of exception, and if in the transcript or abstract filed in the appellate court that appears in the record proper which belongs in the bill of exceptions, or vice versa, it will not be considered. Lawyers are ad vised to mate themselves familiar with the learning of the law on this subject, but why should there be any learning on the subject? Everything done in the course of a case is now, in fact, made a matter of record, motions as well as pleadings; and the evidence being taken in shorthand and transcribed by an offi cial reporter, this when approved as correct can be filed and the bill of exceptions dispensed with altogether. But the habit of technicality is strong with us, and holds us to the neglect of sub stance. The short form of appeal in Missouri requires that a certified copy of the judgment shall be filed in the appellate court and later there must be filed a printed abstract of record of the court below. A case was recently dis missed by the Kansas City Court of Appeals because the printed abstract did not set out that the certified copy of the judgment had been filed. It had been filed in fact, and by predicating a dismissal upon this ground, the court refused to take notice of its own record of the case. Our practice is too much beset with requirements which, com plied with, serve no good purpose what ever, but the omission of which is fatal to the case, and as long as this continues there will be much useless labor imposed alike upon counsel and the court. If records are to be reduced in volume, the process of elimination must not be a dangerous one, and form must be dealt with as form, and the punishment in
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case of offense against it should be made to fit the crime. It is a worse than Draconian code which punishes the client capitally for the misdemeanor of his counsel. When a case has been safely con ducted through the devious course of appellate procedure, the old spirit asserts itself in the manner in which it is re viewed. It is not sufficient to sustain the judgment that it is right, but there may be no error in any of the proceed ings leading up to it. We profess great respect for the verdicts of juries, and under guise of this respect set them aside for the most trivial causes. The statute provides that a case shall not be reversed except for some cause affect ing the merits, but we emasculate the statute by the rule of administration that error is presumptively prejudicial. The appellate judges may be sure that the evidence improperly admitted or ex cluded, or the instruction given or with held, would not have affected the result with them, but they cannot say as to the jury, and so the verdict is set aside. And yet they do in many cases put themselves in the place of the jury and say what should or should not be done respecting a question of fact. Negli gence is a question of fact, but if upon the evidence presented in any case all reasonable men must draw the same conclusion respecting it, the question is held to be one for the court. The trial judge may think in a particular case that reasonable men might differ as to the matter and so submit the case to the jury; the jury may find that there was negligence, and the appellate court may set aside that verdict, the judges substituting their judgment of what all reasonable men should conclude for that of the jury. A motion for new trial is made on the ground of newly discovered evidence, and the court refuses the
