Donnell v. Vigus Quarries, Inc.
| Decision Date | 19 December 1972 |
| Docket Number | No. 34402,34402 |
| Citation | 489 S.W.2d 223 |
| Parties | Hart B. DONNELL and Edna L. Donnell, Plaintiffs-Appellants, v. VIGUS QUARRIES, INC., a corporation, and Fred Weber Contractor, Inc., a corporation, Defendants-Respondents. . Louis District |
| Court | Missouri Court of Appeals |
Pannell, Dodson & Robinson, Festus, Gregory D. O'Shea, St. Louis, for plaintiffs-appellants.
Earl R. Blackwell, Hillsboro, for defendants-respondents.
Plaintiffs filed their petition against adjacent landowners, the defendants, in four counts. Count I sought actual and punitive damages for the willful destruction of plaintiffs' timber and a change of the surface of some of their land by grading. The jury returned a verdict for plaintiffs in the amount of $500.00 on this count. Under Count II the plaintiffs alleged a diversion of the natural flow of a stream by excavating a new channel and filling in the old channel, causing additional hydraulic force and turbulence which eroded plaintiffs' downstream land. The court denied the mandatory injunction prayed. Count III prayed actual and punitive damages. Here, the jury found for defendants. In Count IV plaintiffs sought actual and punitive damages for changing the flow of a spring branch to a different location on plaintiffs' land thereby causing erosion. The jury found for plaintiffs and assessed actual damages at $800.00 and punitive damages at $1,000.00. The defendants' counterclaim for trespass and unlawful detention was granted and damages assessed at $1,000.00. Both plaintiffs and defendants filed motions for new trial. Plaintiffs charged the court with error in arriving at its judgment on all four counts of the petition and the counterclaim. The court granted plaintiffs a new trial on the counterclaim and defendants a new trial on the award of punitive damages under Count IV of plaintiffs' petition.
To initiate their appeal, plaintiffs filed a notice of appeal on November 1, 1971. In it they asserted they were appealing from motion for a new trial. Since there were three counts other than Count II, we cannot determine what was meant by the duplication other than that the appeal was taken from the judgment entered as to Count II. Since no reference was contained in the notice of appeal to any part of the judgment other than Count II, we are limited on appeal to a determination of whether the court committed error in rendering that part of the judgment. Rule 81.08 (formerly 82.08), V.A.M.R.; Brissette v. Brissette, Mo.App., 471 S.W.2d 691, 693(3).
We pass to another problem. The transcript discloses that plaintiffs filed their notice of appeal on November 1, 1971. No request for a transcript was made until January 10, 1972, and it was sent to the wrong court reporter. Then a letter dated January 24, 1972 was addressed by counsel for plaintiffs to the court reporter who took down the testimony requesting that a transcript be prepared. On March 24, 197i the trial court granted an additional 90-day extension of time in which to file transcript on appeal. Rule 81.19 (formerly 82.19), V.A.M.R. requires, as a condition precedent to the granting of an extension of time for filing transcript on appeal beyond 90 days from the date of filing notice of appeal, that the transcript be ordered in writing from the court reporter within 30 days after the filing of the notice of appeal. 'Absent compliance with such conditions, the trial court has no authority to make such extension, * * *.' Stigers v. Harlow, Mo., 419 S.W.2d 41, 42; Swager v. Monkem Co., Mo.App., 460 S.W.2d 291, 292(1).
We pass on to the filing of briefs and motions. Plaintiffs applied for and received an extension of 10 days to file their brief. Defendants were given 30 days thereafter to file...
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Allison v. Sverdrup & Parcel and Associates, Inc.
...Charles v. Ryan, 618 S.W.2d 220 (Mo.App.1981); In re Marriage of E.A.W. 573 S.W.2d 689 (Mo.App.1978); Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1972); Brissette v. Brissette, 471 S.W.2d 691 (Mo.App.1971). However, in none of those cases did the court find a good faith attempt ......
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Eyerman v. Mercantile Trust Co., N.A.
...a burden we should not assume, and this appeal should be dismissed for failure to comply with Rule 84.04(c). Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223(3) (Mo.App.1972). In view of the majority opinion, however, I have considered the alternative of Rule 79.04, which allows us to rule a......
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Vodicka v. Upjohn Co.
...interests may be determined. * * * We no longer can afford the luxury of doing the work of an advocate on appeal [Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223 (Mo.App.1972) ], and of necessity must make closer examination of briefs and, where deficient, simply dismiss the appeal and let ......
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Adoption C.M. v. E.M.B.R.
...not the function of this Court to develop the facts and thereby do the work of an advocate on appeal. See Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223, 225 (Mo.App.ST.L.D.1972). Here, Mother's statement of facts is not a “fair and concise statement of the facts relevant to the questions ......