Aulgur v. Strodtman

• Decision Date: 11 February 1932
• Court: Missouri Supreme Court
• Parties: MARY E. AULGUR, Appellant, v. GEORGE STRODTMAN, Doing Business Under Style and Firm Name of STRODTMAN & STRODTMAN.

46 S.W.2d 172

MARY E. AULGUR, Appellant, v. GEORGE STRODTMAN, Doing Business Under Style and Firm Name of STRODTMAN & STRODTMAN.

Supreme Court of Missouri.

Division One, February 11, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. R.W. Hall, Judge.

DISMISSED.

Geo. T. Meyer and E.H. Schwarzenbach for appellant.

(1) Appellant's abstract of the record complies with rules 7 and 8. It contains all of the relevant testimony and is in narrative form. All of the exhibits to which the appellant had access were set forth in the abstract. (2) The assignments of error are sufficiently set out. Sedberry v. Gwynn, 222 S.W. 787; Cavenaugh v. Dyer, 215 S.W. 481; Collier v. Lead Co., 208 Mo. 246, 258. (3) The appellant's abstract is indexed to show on what pages in the abstract the witnesses' testimony appears, and the appellant's statement and brief refer to the particular witness whose testimony is relied upon, and if no particular testimony is referred to it is a conclusion drawn from the entire account, or is a matter of addition and subtraction of figures given in the evidence or account attached to the referee's report.

William Hilkerbaumer for respondent.

(1) Johnston v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1142; State v. Wilson, 288 Mo. 315, 232 S.W. 140; Griffin v. National Bank, 246 S.W. 186. (2) It is the duty of the appellant to furnish the court with a proper abstract, setting forth so much of the record as is necessary to a complete understanding of all the questions presented for decision: Rule 13. If such abstract is not furnished and if it appears from the face of appellant's abstract that all of the evidence is not included in appellant's abstract, or if the additional abstract furnished by respondent shows that appellant's abstract omits part of the evidence, the appellate court will not review the evidence, even in a suit in equity. Brand v. Cannon, 118 Mo. 598; Bondurant v. Raven Coal Co., 25 S.W. (2d) 571; Slovensky v. O'Reilly, 233 S.W. 478. (3) Where appellant's abstract refers to exhibits not set out therein, it will be presumed that the exhibits support the findings of the referee. Wilcox v. Todd, 64 Mo. 590; Smith v. Baer, 166 Mo. 404.

ATWOOD, J.

Mary E. Aulgur, appellant herein, filed petition in the Circuit Court of the City of St. Louis asking for an accounting between her and George Strodtman, the latter doing business under the style and firm name of Strodtman & Strodtman. Defendant Strodtman filed answer and counterclaim, and plaintiff replied with a general denial. The case was referred for a trial of all issues and report of findings to the court. Thereafter the referee filed his written report and findings, together with transcript of the testimony and the exhibits offered in evidence. The finding of the referee was in favor of defendant on plaintiff's petition and in favor of plaintiff on defendant's counterclaim. Both plaintiff and defendant filed exceptions thereto. The court overruled all exceptions, approved the referee's report, and rendered judgment in favor of defendant on plaintiff's petition and for plaintiff on defendant's counterclaim. From the judgment so rendered against her plaintiff has appealed.

Respondent filed motion to dismiss plaintiff's appeal, which was taken with the case. It challenges the sufficiency of appellant's abstract under our rules numbered 7 and 8, and the sufficiency of appellant's brief under our rule numbered 15.

First, as to the sufficiency of appellant's abstract of the record. The matters presented to the referee cover a long period of years and embrace a multitude of transactions between plaintiff and defendant in the building of houses and sale of real estate. Appellant would have us treat the case as a suit in equity and try it de novo. The referee's report, which is embraced in appellant's abstract, shows that the testimony given before him covers more than 900 pages and that many exhibits were introduced in evidence and filed therewith which were not attached to his report. Counsel for appellant have undertaken to abstract this voluminous testimony within a compass of 60 pages, and have presented none of the exhibits offered in evidence. The referee's report makes frequent reference to pages of the transcript of the testimony and exhibits, none of which are accessible to us. Counsel for respondent has filed an additional abstract of 47 pages, not for the purpose, he says, of bringing up all of the record necessary for a fair presentation of the case, but rather to show the fatal incompleteness of appellant's abstract.

Our rule numbered 7 is as follows: "In equity cases the entire evidence shall be embodied in the bill of exceptions; provided it shall be sufficient to state the legal effect of documentary evidence where there is no dispute as to its admissibility or legal effect; and provided further that parole evidence shall be reduced to a narrative form where this can be done and its full force and effect be preserved."

Our rule numbered 8 is as follows: "In the absence of a showing to the contrary, it will be presumed as a matter of fact that bills of exceptions contain all the evidence applicable to any particular ruling to which exception is saved."

Also, our rule numbered 13 provides that abstracts "shall set forth so much of the record as is necessary to a complete understanding of all the questions presented for decision. Where there is no controversy as to the pleadings or as to deeds or other documentary evidence it shall be sufficient to set out the substance of such pleadings or documentary evidence. The evidence of witnesses may be in narrative form except when the questions and answers are necessary to a complete understanding of the testimony. Pleadings and documentary evidence shall be set forth in full when there is any question as to the former or as to the admissibility or legal effect of the latter; in all other respects the abstract must set forth a copy of so much of the record as is necessary to be consulted in the disposition of the assigned errors."

Appellant has not challenged the accuracy of the testimony shown in respondent's additional abstract and, if inconsistent with appellant's abstract, respondent's additional abstract must be taken as correct. [Slovensky v. O'Reilly (Mo. Sup.), 233 S.W. 478, 480.] When the two abstracts are read together appellant's failure to state the full import of the evidence in her abstract is apparent, and it further appears that both abstracts taken together do not present enough of the testimony and exhibits offered in evidence to give us a complete understanding of all the questions suggested in the broad review sought by appellant. In equity cases we refuse to consider an appeal wherein it appears that the bill of exceptions has not been fully abstracted. [Patterson v. Patterson, 200 Mo. 335, 341, 98 S.W. 613; Pitts v. Pitts, 201 Mo. 356, 360, 100 S.W. 1047; Huggins v. Hill (Mo. Sup.), 236 S.W. 1051, 1052.] Even in an action at law if appellant seeks a reversal on the ground that there was no evidence to support the verdict, or that a demurrer to the evidence should have been sustained, all the evidence must be presented. [State ex rel. v. Jarrott, 183 Mo. 204, 217, 81 S.W. 876.]

Coming now to respondent's criticism of appellant's brief with respect to specification of errors, we quote as follows from the second paragraph of our rule numbered 15:

"The brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain in addition thereto: (1) a fair and concise statement of ...