Estate of DeGraff
| Decision Date | 27 December 1977 |
| Docket Number | No. 28574,28574 |
| Citation | 560 S.W.2d 342 |
| Parties | In re the ESTATE of Lula DeGRAFF, Deceased. |
| Court | Missouri Court of Appeals |
Morris B. Kessler, St. Louis, for appellant.
Edgar M. Eagan, Jefferson City, Executor, for the Estate.
Granville E. Collins, Fulton, Atty., for William B. Boyd.
Before TURNAGE, P. J., and WASSERSTROM and SOMERVILLE, JJ.
The devisees under the Last Will and Testament of Lula DeGraff, deceased, have appealed from an order of the Circuit Court of Callaway County, Missouri, denying their motion to remove Edgar M. Eagan, executor of said estate, and in remanding the "cause" to the Probate Court of Callaway County for further proceedings.
Letters testamentary were issued to Edgar M. Eagan by the Probate Court of Callaway County. While the estate was in the course of being probated differences arose between the executor and the devisees (hereinafter appellants) which culminated in the filing of a motion to remove the executor. In connection with the motion, and prior to its being heard and ruled on, the devisees filed objections in writing, verified by affidavit, asserting that Patrick Horner, Probate Judge of Callaway County, was "biased and prejudiced" against the devisees in said matter. In a circuitous and bizarre manner which virtually defies credulity, the motion to remove the executor was ultimately heard and adjudicated by the Circuit Court of Callaway County as though properly certified there pursuant to Section 472.060, RSMo 1969. 1
Parenthetically, failure of opposing counsel to objectively view certain differences that arose and to turn to prevailing law and applicable rules for their pursuit and solution has unduly clouded this case at all levels. As a consequence, specious and nonexistent issues have been injected, genuine issues have been obfuscated, and noncompliance with applicable rules of appellate procedure has occurred in certain instances.
This court was sorely tempted to dismiss this appeal sua sponte because appellants' brief fails to comply with Rule 84.04. Instances of noncompliance are so numerous as to rule out inadvertency as a cause and to suggest total unfamiliarity with Rule 84.04. For example, subsection (b) of Rule 84.04 governing jurisdictional statements in appellant briefs provides, in part, as follows: The jurisdictional statement in appellants' brief reads as follows: "JURISDICTIONAL STATEMENT This appeal is within the general appellate jurisdiction of the Missouri Court of Appeals, Article V, Section 3, Constitution of Missouri, as amended 1970, and this matter is within the jurisdictional territory of the Kansas City Court of Appeals by virtue of Section 477.070 Revised Statutes of Missouri, 1969." Measured by subsection (b) of Rule 84.04, supra, appellants' jurisdictional statement is indisputably insufficient from every point of view. It fatally omits advising this court as to the type of civil action involved or the nature of the "judgment" from which the appeal is taken. In short, it fails to "set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, Section 3, of the Constitution whereon jurisdiction is sought to be predicated."
By way of further example, subsection (c) of Rule 84.04 governing statements of fact in appellant briefs provides, in part, that the "statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument." The statement of facts in appellants' brief offends the requirements of subsection (c) of Rule 84.04 in several respects. Instead of constituting "a fair and concise statement of the facts", it gives a distorted and unbalanced view of the evidence presented below by excluding relevant facts favorable to the opposing party. Statements of fact which favorably slant the evidence by similar processes of exclusion have been held not to comply with subsection (c) of Rule 84.04, supra. State ex rel. State Highway Comm. v. Nickerson, 539 S.W.2d 771, 773 (Mo.App.1976); Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 885 (Mo.App.1974); Doehler v. Village of Cool Valley, 498 S.W.2d 621, 622 (Mo.App.1973); and Geiler v. Boyer, 483 S.W.2d 773, 774 (Mo.App.1972). Moreover, statements of a purely argumentative nature are interspersed throughout appellants' statement of facts. Doing so impairs the purpose which the statement of facts is designed to serve and is expressly forbidden by subsection (c) of Rule 84.04, supra.
Finally, subsection (d) of Rule 84.04 governing "Points Relied On" in appellant briefs requires that they "shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous . . .", and cautions that "(s)etting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this rule." Five points are relied on by appellants in their brief. Three of the five points fail to comply with subsection (d) of Rule 84.04, supra, in that they either fail to state "wherein and why" certain actions or rulings of the trial court are claimed to be erroneous or they constitute "abstract statements of law" devoid of any showing of any relationship to any particular "action or ruling" of the trial court.
Numerous appellate opinions have meticulously pointed out the reasons for Rule 84.04, objectively advocated the necessity for compliance, and soberly pointed out the consequences of noncompliance. Nevertheless, the message heralded by such appellate opinions continues to fall on deaf ears in certain quarters, and the disposition of cases on appeal is frequently impeded by those who refuse to acquaint themselves and comply with Rule 84.04. The reason this court has stopped short of dismissing the instant appeal out of hand for multiple infractions of Rule 84.04, supra, lies in the fact that two of the five points relied on by appellants may be expeditiously disposed of, in spite of the infirm jurisdictional statement and statement of facts, without working an injustice on opposing counsel or unduly burdening this court.
The two points deemed to be in compliance with subsection (d) of Rule 84.04, supra, although far from being exemplars, appropriately lend themselves to being partially paraphrased and restated as three separate points: (1) the trial court erred "in not acting to exclude" certain "bills" of William B. Boyd and Granville E. Collins, because they were never filed as "claims" against decedent's estate; (2) the trial court erred "by including Boyd and Collins as parties" during the trial because no "claims" were ever filed by them against decedent's estate; and (3) the trial court erred in remanding the "cause" to the Probate Court of Callaway County for "further proceedings" because...
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