Ford v. Laughlin

• Decision Date: 20 December 1920
• Docket Number: No. 20851.,20851.
• Parties: FORD et al. v. LAUGHLIN et al.
• Court: Missouri Supreme Court

226 S.W. 911

285 Mo. 533

FORD et al. v. LAUGHLIN et al.

No. 20851.

Supreme Court of Missouri, Division No. 2.

December 20, 1920.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Suit by Alfred Ford and another against L. A. Laughlin and others, in which defendants filed a cross-bill. Judgment dismissing plaintiffs' bill and defendants' cross-bill, and awarding defendants costs. A new trial was denied, and plaintiffs appeal. Affirmed.

This proceeding was commenced by plaintiffs in the circuit court of Jackson county, Mo., at Kansas City, as a bill in equity to quiet title to the real estate in controversy, to set aside certain conveyances therein mentioned, etc. It also asks for other affirmative relief.

Defendants filed an equitable answer, pleading res adjudicata, etc., and asked therein that said title be quieted, and that they be granted equitable relief as prayed for therein.

On the hearing of the case, the circuit court dismissed plaintiffs' bill, defendants' cross-bill, and entered a judgment in favor of defendants for cost. Plaintiffs filed a motion for a new trial, which was overruled and the cause duly appealed by them to this court.

On December 17, 1919, plaintiffs filed herein an abstract of the record which, at the conclusion of plaintiffs' evidence, recites the following:

"Thereupon the defendants, to sustain the issues on their behalf, introduced evidence, oral and documentary, as follows, to wit:

"Mr. Laughlin: The defendants offer in evidence the files, including the bill of exceptions, and the mandate of the Supreme Court and the record entries in cause No. 48368."

Plaintiffs' objection to the introduction of this evidence was overruled.

Appellants' abstract, at page 93, recites that:

"The papers above offered in evidence by counsel for plaintiffs (defendants) are in words and figures as follows, to wit: No part of the above proceedings offered in evidence are set out in the abstract before us." (Italics ours.)

Appellants' motion for a new trial, set out on pages 109 and 110, contains the following:

"Q. Because the plea of res adjudicate presented by defendants in this cause is not sustained or sustainable under the testimony produced in this cause by plaintiffs."

Respondents on January 10, 1920, filed herein an additional abstract of the record, setting out the proceedings, records, bill of exceptions, etc., offered in evidence, and which plaintiffs failed to put in their abstract of record, because it was not served and filed in proper time. The objections and reasons for delay stated by defendants were ordered taken with the case.

According to our conception of the law, it is not necessary to go into the merits of this controversy.

Frank Titus, of Kansas City, for appellants.

L. A. Laughlin, of Kansas City, for respondents.

MOZLEY, C. (after stating the facts as above).

1. As this is a proceeding in equity wherein we are required to pass upon the facts and try the case de novo, we cannot consider the merits of the controversy, unless the additional abstract of record is accepted as containing the matters offered in evidence by defendants relating to their plea of res adjudicata.

Rule 7 of this court (186 S. W. vii) reads as follows:

"In equity cases the entire evidence shall be embodied in the bill of exceptions; provided that it shall be sufficient to state the legal effects of documentary evidence where there is no dispute as to its admissibility or legal effect; and provided further that parol evidence shall be reduced to narrative form where this can be done and its full force and effect preserved."

If counsel for appellants was not desirous of having his record incumbered by the proceedings offered as res adjudicata, he should at least have made an honest effort to set forth the substance of same, as was done in Crews v. Lombard, 216 S. W. loc. cit. 512 recently determined by our court in banc. We are of the opinion that, where counsel in an equity case purposely leaves out a part of the main defense relied on by defendants, as here, and asks a court of equity to reject the evidence which his adversary has been compelled to bring here to supply an intentional defect in his own record, the court should enforce rule 7, supra, and affirm the judgment. Huggins v. Davidson, 274 Mo. 34, 202 S. W. loc. cit. 399; Short v. Kidd, 197 S. W. loc. cit. 66, 67; ...