Garrett v. Kansas City Coal Min. Co.

• Decision Date: 01 July 1892
• Citation: 111 Mo. 279,20 S.W. 25
• Court: Missouri Supreme Court
• Parties: GARRETT v. KANSAS CITY COAL MIN. CO.<SMALL><SUP>1</SUP></SMALL>

20 S.W. 25

111 Mo. 279

GARRETT v. KANSAS CITY COAL MIN. CO.¹

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

APPELLATE PRACTICE — MOTION TO DISMISS — ABSTRACT.

A motion to dismiss an appeal for failure to file a complete abstract, as required by the rules of court, will not be considered where the motion does not point out in what respect the abstract is insufficient.

Action by Lewis C. Garrett against the Kansas City Coal Mining Company. Plaintiff obtained judgment. Defendant appeals. The case comes up on motion to dismiss the appeal for failure to file a complete abstract.

Warner, Dean & Hagerman, for appellant. Lipscomb & Rust and John W. Beebe, for respondent.

MACFARLANE, J.

Respondent files a motion herein, suggesting the insufficiency of the abstract of the record filed by appellant under rule 13 of this court, (16 S. W. Rep. vi.,) and insists that the appeal should be dismissed, or the judgment affirmed as of a total failure to comply with said rule. The case was argued and submitted on its merits, attorneys for respondent, on argument, renewing the objection on account of the alleged insufficiency of the abstract, but neither in motion nor on argument specifically pointing out material omissions from the evidence, nor did he undertake to supply the omissions by an additional or counter abstract. These objections require an interpretation of the rule, or rather the determination of its practical application. Rule 13 provides that "the abstracts mentioned in rules 11 and 12 (16 S. W. Rep. v.) shall be printed in fair type, and shall be paged, and shall have a complete index at the end thereof, and shall set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision. Where there is no question made over the pleadings, or over deeds or other documentary evidence, it shall be sufficient to set out the substance of such pleadings or documentary evidence. The evidence of witnesses shall be stated in a narrative form, except when the questions and answers are necessary to a complete understanding of the evidence. When there is any question made over the pleadings, or as to the admissibility or legal effect of any documentary evidence, the pleadings and such documentary evidence must be set out in full with the indorsements thereon; and in all other respects the abstract must set forth a copy of so much of the record as is necessary to be consulted in the disposition of all the assigned errors." Rule 12 provides that respondent may, if he desire to do so, file a further or additional abstract, and rule 16 (16 S. W. Rep. vi.) provides that, if any appellant in any civil case shall fail to comply with the rules requiring abstracts to be filed, the court, when the cause is called for hearing, will dismiss the appeal or writ of error; or, at the option of the respondent, continue the cause at the costs of the party in default.

The record in this case shows that the suit was in equity, involving a question of fraud, and contains 275 typewritten pages, a large portion of it being the testimony of witnesses. The abstract contains 47 printed pages, about 17 of which are taken up in pleadings and documentary evidence. This...