Brand v. Brand
| Decision Date | 10 December 1951 |
| Docket Number | No. 1,No. 42626,42626,1 |
| Citation | 245 S.W.2d 94 |
| Parties | BRAND v. BRAND et al |
| Court | Missouri Supreme Court |
Horace Merritt, St. Joseph, for appellant. J. V. Gaddy, St. Joseph, and Gene Thompson, Maryville, for respondents.
Plaintiff below appealed from a judgment overruling his motion in the nature of a writ of error coram nobis. He filed here a purported transcript of the record certified only by his attorney. Respondents, defendants below, filed a motion to dismiss the appeal for failure to file a properly verified transcript. Appellant filed a reply to such motion.
The judgment below, as set out in the purported transcript, recites that the trial court considered plaintiff's motion, conducted a hearing and heard evidence and argument of counsel for both parties upon plaintiff's motion. The allegations of respondents' motion to dismiss the appeal and the admissions made in appellant's reply thereto also show that the transcript filed is an abbreviated transcript.
The motion to dismiss must be sustained. Sec. 512.110, Mo.R.S. 1949, Sec. 847.135, Mo.R.S.A., provides only two methods of verification of the transcript of record on appeal. If the parties agree that the transcript 'correctly includes all of the record, proceedings and evidence,' a complete transcript need not be approved by the trial court. But the trial court must approve an abbreviated transcript or a complete transcript upon failure of the parties to agree that it is a complete transcript. The transcript appellant filed here bears neither the parties' written agreement nor the trial court's approval.
Furthermore, respondents in their motion allege, and appellant in his reply admits, that respondents' counsel refused to agree to this transcript because it was not 'complete and correct' in that it did not include all the evidence. It is also conceded that the trial judge refused to approve the transcript when same was submitted to him. In the event of 'any dispute concerning the correctness of any transcript, or any part thereof, or if the parties fail to agree within a reasonable time as to its correctness, the transcript shall be settled and approved by the trial court.' Sec. 512.110, Mo.R.S. 1949, Sec. 847.135, Mo.R.S.A. This applies to complete transcripts as well as to abbreviated transcripts. The 'correctness' of any alleged complete transcript is involved either where the adverse party expressly refuses to agree, or where the parties fail within a reasonable time to agree, that the transcript is a complete one. In either instance, there is a 'dispute concerning the correctness' which the trial court must resolve.
In his reply, appellant makes an unusual request. As stated, the judgment below recites that the trial court heard evidence upon plaintiff's motion. The pleadings in this court show that respondents' refusal to agree to appellant's transcript was based upon the omission of all such evidence. Appellant alleges that he offered to include 'whatever statement of evidence or testimony in narrative form' respondents' counsel would prepare, but that his offer was refused.
Appellant does not deny that respondents demanded that appellant include all of the evidence. But, he says, he 'does not know what testimony or what evidence respondents refer to.' He denies the materiality of any of the evidence 'to any issue here.' However, he asks us to consider his transcript and, 'respondents by their answer having admitted the correctness of the transcript with the exception of the matter of evidence, if it appears possible to this court that any testimony or any evidence could be material to any issue here, * * * and if, in the opinion of this court such evidence is properly required to be...
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Hendershot v. Minich
...required to do so, and that the presentation of a full and correct transcript remains the affirmative duty of the parties. Brand v. Brand, Mo., 245 S.W.2d 94, 96; Whealan v. St. Louis Soft Ball Ass'n, 356 Mo. 622, 202 S.W.2d 891. By virtue of this order the trial court might have conducted ......
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