Coleman v. Roberts

• Court: Missouri Supreme Court
• Writing for the Court: Graves
• Citation: Coleman v. Roberts, 214 Mo. 634, 114 S.W. 39 (Mo. 1908)
• Decision Date: 25 November 1908
• Parties: COLEMAN v. ROBERTS et al.

114 S.W. 39

214 Mo. 634

COLEMAN v. ROBERTS et al.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. APPEAL AND ERROR (§ 639)—INSUFFICIENT ABSTRACT—MOTION TO DISMISS.

Where appellant's abstract was fatally defective, but the petition, answer, and reply were properly abstracted, and a certified copy of the judgment and order granting the appeal was filed in the Supreme Court clerk's office, the appellant was entitled to have the question whether the judgment entered was one which should stand on the face of the pleadings and judgment, and hence the appeal would not be dismissed.

2. APPEAL AND ERROR (§ 635)—RECORD—ABSTRACT.

An appeal would not be dismissed for failure to abstract the record entry granting the appeal where a certified copy of the judgment and order granting the appeal was filed with the clerk of the Supreme Court.

3. JUDGMENT (§ 248)—ISSUES.

Where a petition stated an ordinary cause of action in ejectment, and the answer was a general denial and a plea of limitations, with a reply consisting of a general denial, a finding and judgment for defendant for costs was consistent with the pleadings.

Appeal from Circuit Court, Mississippi County; H. C. Riley, Judge.

Action by Grover Coleman by his guardian, P. P. Beggan, against Mattie Roberts and another. Judgment for defendants, and plaintiff appeals. Motion to dismiss appeal denied. Judgment affirmed.

Boone & Lee, for appellant. Russell & Deal, for respondents.

GRAVES, J.

In this case there is a motion to dismiss the appeal for failure to file a sufficient abstract of record as required by the rule of this court. That the abstract falls far short of this rule we are all agreed. The abstract is deficient in many respects as pointed out in the very recent cases of Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542. In these cases we have fully covered our rule and the requisites of an abstract, and feel that what we have therein said is sufficient for the guidance of the bar. For that reason we do not take up in detail the deficiencies of this abstract. The motion, however, is to dismiss the appeal. The appeal was taken by the short form. In the abstract before us, the petition, answer, and reply are properly abstracted. In our clerk's office is a certified copy of the judgment and order granting the appeal, which is likewise before us, and under such circumstances that much of the record proper is for consideration. If so, the appellant is entitled to the judgment of the court upon the question as to whether or not the judgment entered is one which can be permitted to stand upon the face of the pleadings and judgment. In such case we will not dismiss the appeal, but will affirm or reverse the judgment as may be required by the record properly before us.

In Stark v. Zehnder, 204 Mo., loc. cit. 448, 102 S. W. 994, upon a similar condition of the record, we said: "Upon that condition of the abstract respondents base a motion to dismiss the appeal. We should not dismiss the appeal in this case, because we have, in sufficient form, the pleadings, the judgment and the order allowing the appeal, and appellants are entitled to show, if they can, that the judgment is erroneous on the face of the pleadings; but in the absence of a sufficient showing by the abstract that on the face of the court record proper there are entries showing that the motion for a new trial was filed, that it was overruled and that the bill of...