Farm Mortgage & Loan Co. v. Schbert.

• Citation: 271 S.W. 873
• Decision Date: 04 May 1925
• Docket Number: No. 14862.,14862.
• Parties: FARM MORTGAGE & LOAN CO. v. SCHBERT.
• Court: Missouri Court of Appeals

271 S.W. 873

FARM MORTGAGE & LOAN CO. v. SCHBERT.

No. 14862.

Kansas City Court of Appeals. Missouri.

May 4, 1925.

Appeal from Circuit Court, Moniteau County; Henry J. Westhues, Judge.

"Not to be officially published."

Action by the Farm Mortgage & Loan Company against Fred E. Schubert. There was a directed verdict for plaintiff, but on defendant's motion a new trial was granted and plaintiff appeals. Appeal dismissed.

Sam S. Haley, of Jefferson City, W. F. Zumbrunn, of Washington, D. C., and W. B. Brown, of Kansas City, for appellant. Embry & Embry and S. C. Gill, all of California, Mo., for respondent,

ARNOLD, J.

This is an action in three counts on as many promissory notes of $900, $900, and $350, respectively, all dated December 8, 1917, at Pharr, Texas, and due in two, three, and four years from date, executed by defendant, and payable to one E. A. Miller. The petition alleges the notes are held by plaintiff in due course and for value, and that they are negotiable.

The answer is a general denial, and a statement that the notes were procured through fraud and deception; that such fraud and deception were known to plaintiff, and that defendant relied upon the same; that plaintiff was not an innocent purchaser of the notes, and that it holds them subject to all equities between the original parties, and that there was a total failure of consideration. The reply was a general denial.

On the trial plaintiff offered in evidence the notes sued on, each of which shows on its face that it is one of a series of notes given for the purchase of 80 acres of land in Hidalgo county, Texas, secured by a vendor's lien and deed of trust on said land. Evidence also was introduced in behalf of defendant in support of the answer. The trial resulted in a directed verdict for plaintiff on each count of the petition. On motion timely filed a new trial was granted, and it is from this ruling of the court plaintiff has appealed.

In his brief defendant attacks the sufficiency of the abstract of the record, charging there is in fact no abstract of the record proper showing trial of the case or any judgment rendered. An examination of the record proper shows there is, first, a "Statement of Essential Facts," and that under this heading some facts are stated, commingled with argument and an enumeration of the grounds upon which plaintiff prosecutes this appeal. This is followed by the petition and answer, both set out in haft verba. There is no attempt to set out the judgment, and in the bill of exceptions the motion for new trial `or any of the rulings of the trial court. The bill of exceptions follows the pleadings as above indicated.

It is also charged that in violation of our rule 16, plaintiff in its brief has not furnished this court with a clear, concise statement of the facts. In the so-called statement are intermingled parts of the pleadings and evidence interspersed with arguments. This is clearly in violation of our rule 16.

Nor is there a compliance with our rule 17, which requires that errors complained of shall be distinctly and separately alleged. Section 1511,...