Bowers v. Spinaio

• Decision Date: 21 November 1967
• Docket Number: No. 32524,32524
• Citation: 421 S.W.2d 790
• Parties: Jack L. BOWERS, d/b/a Jack L. Bowers Asphalt Paving Company, Plaintiff-Respondent, v. Gus SPINAIO et al., Defendants, Gus Spinaio, Defendant-Appellant, John H. Bingham et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 790

421 S.W.2d 790

Jack L. BOWERS, d/b/a Jack L. Bowers Asphalt Paving Company Plaintiff-Respondent, v. Gus SPINAIO et al., Defendants Gus Spinaio, Defendant-Appellant John H. Bingham et al., Defendants-Respondents.

No. 32524.

St. Louis Court of Appeals, Missouri.

Nov. 21, 1967.

Harold M. Weber, J. A. Gochenour, St. Louis, for defendant-appellant.

Vincent J. Cavanaugh, Florissant, for plaintiff-respondent.

Paul Taub, Overland, for defendants-respondents.

BRADY, Commissioner.

This appeal is from a judgment entered in an action in equity. Plaintiff sought the imposition of a mechanic's lien and also prayed for a money judgment. There was a cross-petition filed by the defendants Bingham against the defendant Spinaio who filed a cross-claim against them and a counterclaim against plaintiff. The trial court granted plaintiff a money judgment against Spinaio, denied his request for a mechanic's lien, awarded judgment to the Binghams on their cross-claim against Spinaio, and denied Spinaio relief as requested by his counterclaim. Spinaio has appealed from that decision. We will hereafter refer to the parties by their names or by their designation in the trial court.

The facts contained in our opinion should be stated with reference to the issues therein decided. In most appeals this is relatively easy; in the instant case it is difficult. This for the reason, as the defendants Bingham urge, most of Spinaio's brief presents issues not properly before us. That brief contains six allegations of prejudicial error. Of these, three specifically refer to actions of the trial court which are not alleged as erroneous in the motion for new trial. Alleged errors first presented in an appellant's brief preserve nothing for review when they are not preserved in the motion for new trial. This rule applies to suits in equity. Adams v. Richardson, Mo., 337 SW.2d 911, l.c. 915(1). It follows these three allegations of error present nothing for our review.

Another of the allegations of error found in Spinaio's brief reads as follows: 'The entire findings and judgments of the Trial Court were against the weight of the evidence, contrary to the facts and evidence and contrary to the admissions of the adverse parties in their testimony. The entire transcript should be reviewed by this Court and judgment entered according to the findings of this Court.' (Emphasis supplied.) We cannot read the emphasized portion of this assignment of error as presenting the contention the evidence was insufficient to support the judgment. The emphasized portions of that assignment make clear the allegations of error found therein are specifically stated to be based upon other grounds. It is true that at least some of such allegations of error are found in the motion for new trial. Therein it is alleged: '1. That the portion of the Judgment in favor of plaintiff and against this defendant is against the weight of the evidence.' That same language is repeated as to that portion of the judgment in favor of defendants Bingham and against Spinaio. The motion for new trial also contains the allegation the judgment in favor of defendants Bingham and in favor of plaintiff is 'contrary to the other evidence'. It does not contain any allegation the judgment in favor of plaintiff or the defendants Bingham was 'contrary to the admissions of the adverse parties in their testimony' as found in the assignment of error contained in Spinaio's brief, and that attack upon this judgment is therefore not preserved for review. Adams v. Richardson, supra. Insofar as the allegations the judgment is 'against the weight of the evidence' and 'contrary to the facts and evidence' are concerned, they preserve nothing for our review as they fail to comply with Civil Rule 83.05(a)(3) and 83.05(e), V.A.M.R., requiring the points relied on in a brief to briefly and concisely state the actions of the trial court claimed to be erroneous and why such contention is made. See in re Hyman's Adoption, Mo.App., 297 S.W.2d 1; Civil Rule 83.05, Note 167 et seq., V.A.M.R.; Jeans v. Jeans, Mo.App., 348 S.W.2d 145; Walker v. Thompson, Mo., 338 S.W.2d 114. The emphasized portion of this assignment of error therefore presents nothing for our review.

Does the last sentence in this allegation present anything for our review? The motion for new trial does contain assignments of error which, although lacking in clarity, when given a liberal reading can be construed to allege the evidence is insufficient to support this judgment. Of course, even if the motion for new trial had been deficient in that respect, such a contention may be presented for the first time in the brief. Civil Rule 79.03, V.A.M.R. What we are here concerned with is determining how this sentence should be construed. In this connection it must be noted that while the contention the evidence is insufficient to support the judgment can be raised for the first time upon appeal, it is too well settled to require citation of authority that such contention must be presented in appellant's brief in order to preserve it for review. The question is whether this sentence is an attempt to preserve in the brief the contention found in the motion for new trial the evidence is insufficient to support this judgment or merely an attempt to concisely state the well-known rules of appellate review applicable to equity or jury-waived cases; i.e., that we are to review the whole record and determine the weight and value of the evidence, reaching our own conclusions as to the facts after giving due deference to the findings of the chancellor in matters resting upon the credibility of witnesses. We believe it to be the latter and under that view this sentence of this assignment of error preserves nothing for our ruling. We are supported in this view by the fact that nowhere in the entire argument on this or any other point in Spinaio's brief are the words 'the evidence was insufficient to support the judgment' used. Neither is there language tantamount to that clause to be found anywhere in the brief. However, we are of the opinion the same result would obtain were we to construe this sentence as an attempt to preserve in the brief the allegation of the motion for new trial to the effect the evidence is insufficient to support the judgment. In Schlanger v. Simon, Mo., 339 S.W.2d 825, l.c. 828, there is a recitation of the rules of appellate review in equity cases. We have earlier herein summarized those rules to the effect that we are to review the whole record, etc. Immediately following that recitation the court in Schlanger stated: 'But the appellate court performs the above functions only in respect to the specific matters urged by appellant as constituting error. It does not review the whole case on its own initiative to determine what result it would have reached if it were sitting as the trial judge. * * * An appellate court should not become an advocate of one of the parties, and therefore it is not the duty of an appellate court to search the evidence in an effort to find some theory, and facts in support thereof, to establish a general assertion that the trial court reached the wrong result.' In Yates v. White River Valley Electric Co-Operative, Mo.App., 414 S.W.2d 808(4), a jury-waived case, the same view of an appellant's duty with regard to compliance with Civil Rule 83.05(a)(3) and (e), supra, as that taken in Schlanger v. Simon, supra, and the instant case, is expressed. We do not construe Glassburner v. Burtrum, Mo., 418 S.W.2d 119, as being in point on this issue. That decision deals only with the propriety of raising the issue of insufficiency of the evidence to support the judgment where no motion for new trial has been filed. It does not rule the question involved in the instant appeal; i.e., how or in what manner such an allegation must be stated in the brief. Moreover, in Glassburner, supra, the opinion states the allegations in the brief were effectively worded to raise the issue. We are here concerned with a brief wherein the opposite is true. It follows that even if we were to consider this sentence as raising the contention the evidence was insufficient to support the judgment nothing is preserved for our review for the reason Spinaio has failed to point out the specific respects in which he contends the evidence is insufficient.

There are two allegations of prejudicial error found in Spinaio's brief which are contained in the motion for new trial, preserved in the brief, and are before us for review. Paragraph 7 of the motion for new trial reads as follows: 'That the findings in favor of defendant, Bingham, in the amount of Four Thousand Seven Hundred and Twelve Dollars and 11/100 ($4,712.11) and Two Hundred Twenty Six and 40/100 Dollars ($226.40) is beyond the scope of the pleadings in that defendants, Bingham, neither alleged such sum due them nor proved such sum due them.' Almost identical language appears at Points IV and V of the brief. However, even as to these matters Spinaio attempts in his brief to advance reasons why the trial court erred in giving judgment for the larger amount other than those stated in the motion for new trial. As previously stated, these additional arguments must be disregarded. Adams v. Richardson, supra. It follows the issues presented in this appeal for our ruling are: (1) was there any proof upon which to base the judgment in favor of defendants Bingham in the amount of $4,712.11 and...