Brown v. O'Brien

• Decision Date: 05 January 1920
• Docket Number: No. 13443.,13443.
• Citation: 217 S.W. 600
• Parties: BROWN v. O'BRIEN et al.
• Court: Missouri Court of Appeals

217 S.W. 600

BROWN v. O'BRIEN et al.

No. 13443.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be officially published."

Action by Samuel J. Brown against E. Hale O'Brien and G. S. Waddell, copartners doing business as the Grant Motor Sales Company. Judgment for defendants, and plaintiff appeals. Affirmed.

Ellis, Cook & Dietrich, of Kansas City, for appellant.

Clay C. Rogers and Virgil Yates, both of Kansas City, for respondents.

BLAND, J.

Plaintiff, claiming that an automobile bought by him of defendants was not as warranted, sued defendants for the purchase price. The court gave a peremptory instruction for defendants, resulting in a verdict for them, and plaintiff has appealed. After appellant had served upon respondents his abstract and brief the respondents filed their brief, calling attention to the fact that the bill of exceptions contained no motion for a new trial; that it did not contain any ruling thereon or any exceptions to any such ruling. Respondents asked that the judgment be affirmed.

On November 29, 1919, respondents served upon appellant's attorney a motion to affirm the judgment. This motion asks the court to affirm the judgment on the same grounds as those set forth in respondents' brief. The motion was filed on December 1, 1919. On November 29, 1919, after respondents had served their motion to affirm upon appellant's attorneys, the appellant served upon the respondents a motion for permission to file a supplemental abstract in which appellant asks leave to file such abstract, and in the event that the court refuse such leave appellant asks that an order be made dismissing the appeal without prejudice. Appellant gave notice that' he would take up his motion on the same day that it was served. He filed the motion on that day. On the same day, after appellant had served upon the respondents his motion for permission to amend the abstract, respondents served upon appellant a motion to strike out appellant's motion for permission to file a supplemental abstract, which respondents in their motion allege to be a motion to dismiss the appeal.

The basis of respondents' last-mentioned motion was that they had not been given 24 hours' notice of the making of the motion, as respondents allege appellant should have done under ruling 24 of this court (188 S. W. vi). This last-mentioned motion of respondents was filed on December 1, 1919. On December 3, 1919, appellant filed in this court a motion to dismiss the appeal in which appellant says that his motion is an alternative motion to his request to file a supplemental abstract, and that he still desired to file such an abstract, but, in case the court refuses him permission to do so, that thereupon this court should enter an order dismissing without prejudice appellant's appeal. The case was submitted to this court on December 4, 1919.

We cannot consider the original bill of exceptions for the reason that no motion for a new trial or exception to the ruling of the court thereon appears in the bill. Hays v. Foos, 223 Mo. 421, 122 S. W. 1038; Gilchrist v. Bryant, 213 Mo. 442, 111 S. W. 1128. Appellant cannot file an amended or additional abstract to cure defects in the original one without the consent of the respondents, after his attention to such defects has been called by the latter. Hopper v. Fulbright, 174 Mo. App. 499, 160 S. W. 840; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Everett v. Butler, 192 Mo. 564, 569, 91 S. W. 890; Barham v. Shelton, 221 Mo. 66, 70, 119 S. W. 1089.

For an excuse for failing to incorporate in the bill of exceptions the motion for a new trial and rulings thereon and exceptions to such rulings, appellant's attorney filed an affidavit in which he says he cut out bodily from the carbon copy of the bill of exceptions that portion from the filing of the motion for a new trial to and including the signature of the judge at the end of the bill of exceptions as a part of the matter to be printed in the abstract of the record proper, and that appellant's counsel directed the printer to repeat these things as a part of the bill of exceptions, and if the printer had done so the bill of exceptions would have been complete, but that he failed to do so, and through an oversight appellant's counsel did not notice the defect when the printed abstract was returned from the printer.

It has been said that, when through a mere oversight appellant has failed to note, when his abstract is returned from the printer, that some small detail or matter has been omitted, he will be permitted to amend his abstract on terms that would not prejudice the rights of the respondent. Redd v. Railroad, 122 Mo. App. 93, 97, 98 S. W. 89. But in the case at bar appellant's counsel has shown inexcusable negligence in overlooking the fact that an important part, and what would naturally be a substantial part, of the bill of exceptions had been omitted; that is, the motion for a new trial and the ruling thereon, the exception taken to such ruling, and the signature of the judge to the bill. Under such circumstances, after respondents have gone to the expense of preparing and printing their briefs, it would be inequitable to permit appellant to amend his abstract. Everett v. Butler, supra; Redd v. Railroad, supra. None of the errors assigned in appellant's brief relate to the record proper, and on motion respondents are entitled to either a dismissal of the appeal or an affirmance of the judgment. Everett v. Butler, supra; Redd v. Railroad, supra. Respondents having asked the court to affirm the judgment, and finding no error in the...