Fine v. Waldman Mercantile Co.
| Decision Date | 21 February 1967 |
| Docket Number | No. 32540,32540 |
| Citation | 412 S.W.2d 549 |
| Parties | Marvin FINE and Rosalind Fine, Plaintiffs-Appellants, v. WALDMAN MERCANTILE COMPANY, a Corporation, and Esther Miller, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
Adolph K. Schwartz, St. Louis, for appellants.
Gray & Sommers, C. Marshall Friedman, St. Louis, for respondents.
CLEMENS, Commissioner.
On this appeal two principles of appellate procedure come into conflict: the presumption that the trial court acted correctly, and the presumption that the transcript is correct and complete.
The defendants filed motions to dismiss plaintiffs' petition, charging that a prior action concerning the same subject matter was pending and that the plaintiffs could get relief only by counterclaims in the prior action. The trial court granted the motions and dismissed the petition. Plaintiffs appeal from that order.
By their petition, filed November 18, 1965, plaintiffs Marvin Fine and Rosalind Fine asked for damages arising from a collision with an automobile owned by defendant Waldman Mercantile Company and driven by its agent, defendant Esther Miller. The defendants filed separate motions to dismiss the petition because the Fines had failed to comply with the compulsory counterclaim rule (Civil Rule 55.45(a), V.A.M.R.). Defendant Miller's motion to dismiss asserted:
Defendant Waldman's motion to dismiss asserted the same ground and added:
On January 4, 1966, the parties appeared in court by counsel and the motions-- to quote from the record--'were presented to the Court, argued, heard (leave granted to file memoranda, and thereupon) taken as submitted.' Then, on February 8, 1966, the trial court entered this order:
'The Court having heard and duly considered defendant Miller and Waldman Mercantile Company's separate motions to dismiss, heretofore filed, presented and submitted, and now being sufficiently advised of and concerning the premises, doth order that said motions be and the same are hereby sustained.'
On this appeal, the plaintiffs claim the trial court erred in dismissing their petition because defendants had failed to show there was another action pending that would bring plaintiffs' action within the compulsory counterclaim rule.
We have quoted substantially from the transcript, approved by all parties. We note that defendants' motions to dismiss are unverified; there are no supporting affidavits or exhibits; and the transcript does not show any stipulations, admissions or evidence of the alleged prior action. We further note that in its order dismissing plaintiffs' petition the trial court made no finding about the alleged prior action.
The defendants' motions to dismiss are authorized by Civil Rule 55.31, V.A.M.R., which says that certain defenses, including the pendency of another action, 'and other matters' may be raised by motion. This kind of motion may go beyond the face of the pleadings; it has been called a 'speaking motion.' Randall v. St. Albans Farms, Inc., Mo., 345 S.W.2d 220(2); Locasio v. Ford Motor Co., 240 Mo.App. 269, 203 S.W.2d 518(1, 2). But unless the grounds for the motion are uncontroverted, they must be supported by affidavits, records or other evidence. In other words, the motion does not prove itself; the movant has the burden of proving its substance. Glick v. Ballentine Produce Inc., Mo., 396 S.W.2d 609(2); Hall v. Smith, Mo., 355 S.W.2d 52(4); Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69(7--8); Meisel v. Mueller, Mo.App., 261 S.W.2d 526, l.c. 531--532.
The defendants here did not carry that burden; the record is void of evidentiary support that would authorize the court to grant the motion. It seems incredible to us that the trial court dismissed plaintiffs' petition without having before it some documentary evidence of the prior action. We suspect that it did. The defendants, however, did not make a record of facts upon which we can say the trial court was correct in dismissing the petition. We must take the transcript as we find it; it may not be padded with extraneous material. Baker v. Missouri Nat. Life Ins. Co., Mo.App.,372 S.W.2d 147(11, 12). (For this reason we do not consider the certified copies of pleadings that defendants recently lodged with our clerk--deposited without notifying opposing counsel and without asking for leave to file.)
As said, we are...
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...the appellate court considered the motion itself and the trial briefs supporting and opposing the motion. Finally, Fine v. Waldman Mercantile Co., 412 S.W.2d 549 (Mo.App.1967), interprets former Rule 55.31, now current Rule 55.27 and 55.28. The Fine court stated that the movant bears the bu......
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