City of Hannibal v. Winchester
| Decision Date | 18 September 1962 |
| Docket Number | No. 30897,30897 |
| Citation | 360 S.W.2d 371 |
| Parties | CITY OF HANNIBAL, Missouri, a Municipal Corporation (Plaintiff) Respondent, v. Ben N. WINCHESTER and Ruth Winchester, his wife, et al. (Defendants) Appellants. |
| Court | Missouri Court of Appeals |
William B. Spaun, Hannibal, for appellants.
Dennis R. Davidson, City Counselor, Hannibal, for respondent.
On November 4, 1959, the original petition in this litigation was filed as a class suit by authority of a resolution of the City Council of Hannibal, under the provisions of Section 71.015, V.A.M.S., the Sawyer Act, to secure a declaratory judgment from the Hannibal Court of Common Pleas authorizing Hannibal to proceed with annexation of territory on the periphery of that city.
Later, on February 7, 1961, the Council adopted a resolution to amend the original petition by deleting from it certain landowners and their lands. Pursuantly, the City presented its amended petition and the court allowed it to be filed 'over the objection of Defendants.' The defendants dismissed do not appeal. The defendants remaining in the suit after the amendment are now undertaking to appeal.
On us rests the duty in every controversy brought to this court to determine for ourselves whether we have jurisdiction and this, whether the parties question our jurisdiction or not. Mo. Dig. Vol. 2, Appeal & Error, Key 23 p. 600. This we proceed to do, for unless the complaints brought to us are from final and appealable orders or judgments, we are without jurisdiction.
The appealing defendants who remain in the suit present two principal points: (1) the trial court wrongly allowed the cause, a class suit, to be 'dismissed or compromised' by allowing the filing of the amended petition dropping some of the landowners and their lands, in violation of Section 507.070, V.A.M.S., Subsection 3, V.A.M.R. 52.08(c), directing in essence that no class suit may be 'dismissed or compromised' without notice to all parties interested; and (2) in denying the (remaining) defendants as third-party plaintiffs the right by third-party petition to bring into the suit Harry Musgrove, Melvin Serenco and the Musgrove-Serenco Realty Company as third-party defendants. All other arguments revolve around these two points and depend for their legal vitality on them.
To say that this record is deplorably unsatisfactory is to put it mildly, for time and time again we scrutinize arguments in the briefs before us and then search the record at large and in vain for any slightest support for those arguments. V.A.M.R. 82.12 requires 'The transcript on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court for decision by either appellant or respondent, * * *.' The present transcript testifies to an almost complete disregard for this rule.
Fundamental it is that an appellate court cannot accept mere assertions in briefs, except when the parties are in agreement, concerning the basis of a trial court's ruling, and that the court must look alone to the transcript itself to ascertain what the court did and its reason for doing so. LaRue v. Bloch, 215 Mo.App. 501, 255 S.W. 321; Key v. Key, Mo.App., 93 S.W.2d 256. We must take the transcript as we find it, and we cannot piece or inch it out by reliance on unsupported assertions in the briefs.
We examine appellants' first point: That the trial court allowed the suit to be 'dismissed or compromised' without any notice to the interested parties and that this resulted in dismissal of some of the parties and the dropping of their lands, leaving no adequate representation of the class. We are mindful of our ruling in Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., Mo.App., 308 S.W.2d 769, 772 (2, 3), that where 'adequate representation is essential to the preservation of the rights of the class, an order that in effect denies adequate representation is reviewable by appeal' as a final order, notwithstanding the appeal is not from a judgment finally disposing of all parties and all issues in the cause, a condition ordinarily precedent to a final and appealable judgment. Section 512.020, V.A.M.S., notes 93-104; Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597. We look to the transcript presented to us to ascertain whether appellants' complaints can and ought to be reviewed by us. For unless this transcript presents a controversy analogous to Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra, the present complaints do not arise from a final and appealable order, do not constitute an exception to the general rule as the order in Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra, and we are without jurisdiction.
Returning to the transcript, we find the following: The original and amended petitions are in the record, it is true. But neither bears a caption. The body of neither petition refers to any single individual defendant by name, but broadly refers to all defendants as 'the Defendants' at all times. We have no way of ascertaining, except from mere assertion in appellants' brief, what defendants were dropped and a fortiori we cannot tell from the transcript whether dropping them prejudiced the suit or the class in any way. Added to this the original and amended petitions are both very lengthy and both contain legal descriptions of great length. Particular tracts of land are not described, only the entire tract to be annexed, and this court has no way of knowing from the transcript what lands were dropped from the original petition by the amended petition and by whom they were owned, and no one but a professional engineer or surveyor working on the ground could know. We believe it would have been entirely practical for the appellants to have presented to this court a transcript that would have furnished us with the decisive and vital information which this transcript leaves so palpably absent.
The briefs name Harry Musgrove, Melvin Serenco and the Musgrove-Serenco Realty Company as having been dropped and 'also the property of many of the original defendants,' without even stating who the 'many * * * original defendants' were or what lands they owned within the area of proposed annexation. It is impossible to tell from the transcript whether dropping any of these particular defendants and their lands and 'many of the original defendants' and their lands, unnamed, and undescribed particularly, was prejudicial to the suit or adequate representation of the class. In this whole transcript there is nothing relevant to this argument of denial of 'adequate' representation except a lengthy motion 'for Rehearing, Review and New Trial' claiming the dismissal were in violation of Section 507.070, V.A.M.S., Subsection 3; V.A.M.R. 52.08(c); Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer Dist., supra; and that they resulted in multifarious sorts of fatality and prejudice to the suit and to adequate representation of the class.
Here again we are confronted by the uniform rulings that a mere assertion of an action or an error urged in a motion for a rehearing or a motion for a new trial is 'not evidence of the thing stated,' does not prove itself, and is of no effect or force unless supported by the transcript, and we do not have such a transcript before us. Noren v. American School of Osteopathy, 223 Mo.App. 278, 2 S.W.2d 215, 218; Lubrication Engineers, Inc. v. Parkinson, Mo.App., 341 S.W.2d 876, 879; Mo.Dig. 2A, Appeal & Error, 712, 713(2); Fred Wolferman, Inc. v. Root, 356 Mo. 976, 204 S.W.2d 733, 174 A.L.R. 585. We can place no reliance on this motion in ruling this cause. We must disregard it.
We recall the elementary principle that we must presume right rather than wrong action by the trial court in the absence of any evidence to the contrary, Lubrication Engineers, Inc., v. Parkinson, supra, of which there is none. On this transcript, we will not rely on this presumption for our ruling. We elect to dispose of this point for other reasons.
But if we desired to presume, our conclusion would be that this point is wholly without merit and that all defendants were notified, as required by the statute and the rule, and that no prejudice resulted from the amendment; for the transcript discloses that the amended petition was filed, and the dismissals were allowed, 'over the objection of the Defendants,' all defendants. What 'objection' was entered is not particularized in the transcript. How the defendants could object without being present in court, and how...
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