Bank of Meta v. Schnitzler

• Decision Date: 08 January 1934
• Docket Number: No. 17939.,17939.
• Citation: 67 S.W.2d 106
• Parties: BANK OF META v. SCHNITZLER et al.
• Court: Missouri Court of Appeals

67 S.W.2d 106

BANK OF META v. SCHNITZLER et al.

No. 17939.

Kansas City Court of Appeals. Missouri.

January 8, 1934.

Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.

Action by the Bank of Meta, a corporation, against P. H. Schnitzler and others. From a judgment in favor of plaintiff, defendants other than named defendant appeal.

Appeal dismissed.

Paul B. Dessieux, of Linn, for appellants.

Hutchison & Hutchison, of Vienna, for respondent.

SHAIN, Presiding Judge.

This is an action in equity brought by Bank of Meta, a Missouri corporation, as plaintiff, against P. H. Schnitzler, George L. Huhman, and Mary Huhman, his wife, as defendants. The object of the suit was to correct the description of real estate, alleged as mutual mistake, in a deed of trust given by George L. Huhman and Mary, his wife, to secure a loan of money from the plaintiff.

The cause was tried in the Osage county circuit court, and resulted in a judgment making the correction asked for in the plaintiff's petition. From the judgment, defendants George L. Huhman and Mary Huhman in due time and in due form filed a motion for new trial, which was overruled by the court and exceptions taken. Said defendants filed application and affidavit for appeal, which was duly allowed, and the short transcript of the record was duly lodged in this court.

On November 17, 1933, and in due time the appellants filed in this court what purports to be "Appellants' abstract of the record and brief." On December 4, 1933, statement and brief was duly filed by respondent; cause was argued and submitted at the December call, 1933, of this court.

Respondent in its brief presents the contention that defendants' appeal herein should be dismissed for failure to comply with section 1060, R. S. 1929 (Mo. St. Ann. § 1060, p. 1341), and rule 16 of this court.

Section 1060, R. S. 1929 (Mo. St. Ann. § 1060, p. 1341) is as follows: "On appeals and writs of error each party shall, on or before the day next preceding the day on which the cause is docketed for hearing, make out and furnish the court with a clear and concise statement of the case, and the points intended to be insisted on in argument."

Rule 16 of this court conforms to the mandate of the statute.

"Appellants' abstract of the record and brief" is all contained under one cover, and, to determine the question presented, we have made a careful examination of the document filed. On the first and second pages of the abstract is found the following under the heading, "Statement":

"This action was begun in the Circuit Court of Osage County, Missouri, at its June Term, 1932.

"The purpose of the suit is to reform a deed of trust, given by George Huhman and wife to the Bank of Meta in October, 1921, conveying about 235 acres of land, so as to include about five acres more land, being the balance of land owned by Huhman at the time of executing said deed of trust.

"Plaintiff alleges erroneous description of said five acres due to the mistake of the scrivener and the mutual mistake of grantees and grantor.

"Plaintiff in original petition joined all grantors and grantees appearing of record in chain of title for a period of more than forty years, asking that all of said conveyances and the records of same be reformed, including sheriff's deed to respondents herein, they having bid in said land at the time they foreclosed said deed of trust. Demurrer to said petition was sustained.

"Plaintiff filed amended petition making only George Huhman, Mary Huhman and P. H. Schnitzler defendants, seeking to reform deed of trust from George Huhman and Mary Huhman to Bank of Meta, dated October, 1921, and to...