Brand v. Cannon
| Decision Date | 16 December 1893 |
| Citation | 24 S.W. 434,118 Mo. 595 |
| Parties | Brand et al. v. Cannon et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court.
Appeal dismissed.
Charles W. Chase, Sangree & Lamm and W. B. C. Brown for appellants.
Jackson & Montgomery for respondents.
The motion to affirm for failure to prepare and file in this court a sufficient abstract is justified by the following authorities: Long v. Long, 96 Mo. 180; Jayne v Wine, 98 Mo. 404; Craig v. Scudder, 98 Mo. 664; Clark v. Fairley, 100 Mo. 236; Snyder v Free, 102 Mo. 325; Thompson v. Allen, 107 Mo 480; Cunningham v. Railroad, 110 Mo. 208; Garrett v Coal Co., 111 Mo. 279.
This is an appeal from the circuit court of Pettis county. Appellants have filed what purports to be an abstract of the record, under rules 11, 12 and 13, of this court. Respondents filed a motion to affirm the judgment and suggestions in support thereof, on the first day of this term, and on account of the sickness of counsel for appellants, the time was extended to enable them to file suggestions in opposition.
The motion to affirm is based upon the insufficiency of the abstract under the rules. It is unnecessary to repeat those rules here, as they are to be found in each of the late volumes of the reports. They were designed and intended to expedite the determination of causes in this court and to aid the court in grasping the points of difference between counsel, and the questions upon which a reversal was asked.
The question here presented, however, shows how futile our efforts have been. Appellants have filed a printed book of four hundred and twenty-three pages, which they denominate an abstract. This abstract is here in lieu of a complete transcript, by virtue of section 2253, Revised Statutes, 1889. It is challenged by respondents, because on its face it does not purport to be an abstract of all the record, necessary for the determination of the cause.
The cause is one in which there is a contest over the will of Sarah E. Brand, late of Jackson county, and it was alleged in the petition that she was not of sound mind when she executed the paper writing. There was a verdict for the plaintiffs or contestants in the circuit court.
It is shown that there were one thousand and sixty-five pages of type-written matter of the evidence alone. Among other grounds for reversal appellants urge that the verdict was contrary to the evidence; that the court committed error in giving and refusing instructions; and error in permitting medical experts to answer the hypothetical questions propounded by respondents because said questions assumed matters not in the evidence.
It is apparent that it is important to respondents that the substance, at least of all the evidence, shall be before us to enable us to rule upon the propriety of some of these questions. By the issue thus raised we have been driven to an examination of this abstract to determine its sufficiency. The first seven pages contain a seemingly fair and clear statement of the pleadings. Then follows about four hundred pages of extracts from the evidence. No attempt is made to state the substance, nor is it stated in a narrative form, nor are there any explanatory headings or words to indicate the object of the evidence, but it consist wholly of literal excerpts of the questions and answers, as they appeared in the bill of exceptions. Many omissions occur, but it is not explained whether the omitted matter is material or immaterial. Among others, Dr. Clough's testimony is entirely omitted.
Respondents have with great care filed a comparative list, showing how much of the evidence is omitted. To the suggestions of respondents, appellants reply that if they desire the omitted record, they could file it in an additional abstract. But it is apparent at once that this is not the spirit of our statute, or of our rules. When a party obtains a...
To continue reading
Request your trial