Gorman v. Kauffman, 20501.

• Decision Date: 21 May 1945
• Docket Number: No. 20501.,20501.
• Citation: 188 S.W.2d 70
• Parties: GORMAN v. KAUFFMAN et al.
• Court: Missouri Court of Appeals

188 S.W.2d 70

GORMAN v. KAUFFMAN et al.

No. 20501.

Kansas City Court of Appeals. Missouri.

May 21, 1945.

Appeal from Circuit Court, Livingston County; Ira D. Beals, Judge.

Suit by Ed Gorman against J. Grady Kauffman, administrator with will annexed of the estate of Elizabeth Gorman, deceased, and others to set aside decedent's will. From a judgment sustaining the will, plaintiff appeals.

Appeal dismissed.

Charles A. Miller, of Trenton, for appellant.

W. S. Thompson and John E. Powell, both of Princeton, for respondents.

BOYER, Commissioner.

This is an appeal from a judgment rendered on the verdict of a jury sustaining the last will and testament of Elizabeth Gorman.

Owing to the nature and character of appellant's brief, we are impelled to inquire whether the appeal should be dismissed on the ground that the brief does not comply with the requirements of the applicable rules of court. The rules of practice and procedure for appellate courts adopted by the Supreme Court contain Rule 1.08 prescribing the required contents of appellant's brief. This rule provides that the brief shall contain: (1) A concise statement of the grounds on which the jurisdiction of the review court is invoked. (2) A fair and concise statement of the facts without argument. (3) The points relied on, which shall specify the allegations of error, with citation of authorities thereunder. Rule 1.15 provides that if any appellant in any civil case fails to comply with Rule 1.08 and others the court, when the cause is called for hearing, will dismiss the appeal unless good cause is shown or the interests of justice otherwise require.

Appellant's brief is deficient both in the statement of facts and in the assignments of error. The statement begins with a recital that this is a suit to set aside the will of plaintiff's mother, Elizabeth Gorman, the will being dated June 25, 1934. The defendants are the administrator with the will annexed, Myra M. Cox and Betty E. Gorman, daughters of the plaintiff and chief beneficiaries under the will, and Ab Cox, son-in-law of plaintiff; that appellant pleads that his mother was of unsound mind and that the making of the will was procured by false representations and undue influence exercised upon the testatrix by respondents, Myra Cox, Betty E. Gorman, and Ab Cox; that the suit was filed in the Circuit Court of Mercer County, and on change of venue was tried in the Circuit Court of Livingston County; that a verdict and judgment were rendered sustaining the will, and that plaintiff has appealed. The statement then proceeds to recite that respondents' evidence shows execution of the will and condition of mind of testatrix at the time, and then makes reference to certain testimony of Myra Cox and Betty Gorman at certain designated pages of the transcript. All that is said in reference to the facts claimed to have been developed by the evidence of appellant is the following:

"Appellant's evidence beginning at Page 222 with the evidence of appellant and continuing through his cross examination, shows the condition of testatrix's mind and that she was of unsound mind before, at the time, and after the signing of alleged Will. Witness Tom Hampton, Page 264 to 279, inclusive, shows the deceased testatrix to be of unsound mind. Mrs. Tom Hampton at page 279 to 284 testifies to circumstances showing testatrix to be of unsound mind. Other witnesses testify as to unsoundness of mind at time of making of the alleged Will."

From the foregoing it is evident that appellant has failed to make a statement of the facts developed by the evidence of either party to the action, and has simply, in effect, referred the court to the transcript to find the facts. The transcript in this case is submitted in typewritten form and consists of 355 pages. As a preliminary to the consideration of an appeal, it is the duty of appellant to set forth the facts disclosed by the evidence and to make a fair and concise statement of the facts relevant to the questions presented for determination. Rule 1.08(b). Failure to do so is sufficient grounds for the dismissal of the appeal. Rules of appellate procedure similar to those referred to herein have long been in effect. The purpose and benefit of such rules and the consequences of a violation have been stated, repeated and reiterated in many cases. A few of the prominent ones illustrative of deficiencies in the statement of facts together with the citations of authorities in them will be regarded as sufficient. Sims v. Hydraulic Press Brick Co., 323 Mo. 447, 19 S.W.2d 294; Beck v. Security Benefit Ass'n, Mo.App., 129 S.W.2d 1073; Royal v. Kansas City Western Ry. Co., Mo. Sup., 190 S.W. 573; Le Clair v. Le Clair, Mo.App., 77 S.W.2d 862; Marks v. Acme Phonograph Co., Mo.App., 236 S.W. 900. As stated in the last cited case, respondent cannot waive compliance with the rule of court. The above cases with authorities cited in the opinions fully sustain the holding which we now make that the statement in this case is wholly insufficient and would justify a dismissal of the appeal.

In addition to the foregoing there is no assignment of errors in the brief sufficient to challenge the attention of the appellate court. There is no separate assignment of errors, and under the headline "Points and Authorities" everything that is shown is the following:

"I. The amount involved, according to inventory in the evidence, is $2400.00 in money. This court, then, has jurisdiction. Page 245 of Record.

"II. The verdict is against the greater weight of the evidence and against the law. Page 222 and following of Appellant's evidence.

"III. Instructions 13 and 14 on confidential and fiduciary relation existing between beneficiaries and...