Le Clair v. Le Clair

• Decision Date: 03 December 1934
• Docket Number: No. 17518.,17518.
• Citation: 77 S.W.2d 862
• Parties: LE CLAIR v. LE CLAIR et al.
• Court: Missouri Court of Appeals

77 S.W.2d 862

LE CLAIR v. LE CLAIR et al.

No. 17518.

Kansas City Court of Appeals. Missouri.

December 3, 1934.

Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Action by Joanna Le Clair against Henry Le Clair and another. From a judgment on a directed verdict for defendants, plaintiff appeals. On motion to dismiss appeal.

Motion granted.

E. M. Zevely and J. P. Peters, both of Linn, for appellant.

Paul B. Dessieux, of Linn, and Irwin & Bushman, of Jefferson City, for respondents.

BLAND, Judge.

This is an action for alienation of affections. At the close of plaintiff's testimony, the court gave defendants' peremptory instruction, resulting in a verdict in favor of defendants. Plaintiff has appealed. Defendants have filed a motion to dismiss the appeal, which we think must be sustained. The statement contained in plaintiff's brief does not comply with the statute, section 1060, R. S. 1929 (Mo. St. Ann. § 1060, p. 1341), or Rule 16 of this court. The so called statement sets forth nothing more than that an action was commenced by plaintiff against the defendants in the circuit court of Osage county wherein plaintiff sued defendants for alienating the affections of her husband; that the petition prayed for compensatory damages in the sum of $6,000.00; that the case was tried by a jury. The "statement" then names the attorneys appearing for the respective parties. It concludes by saying that at the close of plaintiff's evidence a demurrer to the evidence was sustained by the court; that the jury rendered a verdict for the defendants; that, thereafter, in due time a motion for a new trial was filed; that the motion was overruled and that plaintiff has appealed.

The facts disclosed at the trial of the case are not set out in the so called statement and it is apparent that it does not consist of a clear and concise statement of the case, as required by the statute and the rule of this court. The penalty for failure to file a proper statement is dismissal of the appeal. Rule 18; Hale v. Hale (Mo. App.) 22 S.W.(2d) 56; Euler v. State Highway Commission, 227 Mo. App. 755, 55 S.W.(2d) 719; State ex rel. v. Shain, 333 Mo. 235, 62 S.W.(2d) 711; Daniel v. Burns (Mo. App.) 283 S. W. 749; City of Huntsville v. Hamilton Estate (Mo. App.) 33 S.W. (2d) 185.

It has been held that the statute and rule providing for the statement are to require the appellant to give the court a clear understanding of the case without the necessity of reading the entire record in order to ascertain the facts. This is true, not because the court does not read the record when a statement is filed but to help the court in so doing. A good statement filed by the appellant, followed by one by the respondent, often discloses an agreement as to most, if not all, of the salient facts and results in the elimination of many of the issues which might otherwise appear in the case by a reading of the record without the aid of the statements. Consequently, under such circumstances, in reading the record the court is not required to study that part relating to subjects about which the statements show the facts are agreed upon.

Again, it is equally important for the court to have appellant's theory of the facts as it is to have his theory of the law. As the law of a given case is always based upon the facts a good statement by appellant often gives a clearer understanding of the law points subsequently raised in his brief. In many of the cases the points raised eliminate a great deal of the facts shown in the record, in that such points narrow the case down to such an extent that only a few of the facts need be considered in deciding the appeal. Appellant's statement, in such instances, is confined to such facts as he feels have a bearing on his points and the court is not forced to closely examine the record, except as to those facts.

Again, there is often a dispute in this court between the parties as to the meaning to be given some parts of the testimony of a particular witness and, in fact, it is sometimes difficult for the court, itself, to ascertain such meaning when such testimony is read. In these instances it is a great help to the court to have the interpretations of the parties as to the meaning and effect of such testimony. The facts contained in the statement should be set forth in accordance with the theory of the writer thereof so that the court can read the record with the interpretations of the party or parties before it.

For these reasons, among others that might be mentioned, a good statement of the case is a great aid to the court.

The first assignment in the brief reads as follows:

"The court erred in excluding from the jury, and striking out, on motion of defendants, all evidence appearing in various places in the record, of statements by the husband, Elmer Le Clair, and his acts and conduct showing at first a great affection for plaintiff and later a loss of affection, on the grounds that such statements were confidential communications between husband and wife. Such evidence was clearly admissible."

This is not a sufficiently definite assignment of error to permit of its being considered by this court. In order to pass upon the point raised it would be necessary for us to examine all of the testimony to find out, if possible, what acts and conduct of Elmer Le Clair showed first great affection for plaintiff and later a loss of affection. It is well settled that assignments of error must not only assign error but must set out the matters complained of or point to the record where they may be found and that this cannot be done solely in the printed argument. Scott v. Mo. Pac. R. Co., 333 Mo. 374, 62 S.W.(2d) 834, 840; Seewald v. Gentry, 220 Mo. App. 367, 286 S. W. 445; Artz v. Bannan (Mo. App.) 71 S.W. (2d) 795. The only other assignment of error contained in the brief is that the court erred in overruling appellant's motion for a new trial. This assignment is too general to be considered. Cunningham v. K. C., 225 Mo. App. 1063, 38 S.W.(2d) 734; Kunst v. Walker (Mo. App.) 43 S.W.(2d) 886; St. Louis-San Francisco Ry. v. Dillard, 328 Mo. 1154, 43 S.W.(2d) 1034.

We find in the brief the following: "Where there is any evidence tending to support the issues in the case, although slight, it should be submitted to the jury, and it is error to order a nonsuit or direct a verdict." This appears to be a statement...