Heffernan v. Weir

• Decision Date: 03 March 1903
• Citation: 72 S.W. 1085,99 Mo. App. 301
• Parties: HEFFERNAN v. WEIR.
• Court: Missouri Court of Appeals

72 S.W. 1085

99 Mo. App. 301

HEFFERNAN v. WEIR.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

APPEAL — RECORD — SALE OF MORTGAGED REALTY—ASSUMPTION OF DEBT—BURDEN OF PROOF.

1. On appeal in equity, it is not necessary to review the declarations of law given or refused by the trial court.

2. Unless it affirmatively appears by the record on an appeal in equity that all the evidence offered has been preserved, the decision below will not be reviewed.

3. In a suit by a mortgagee to charge a grantee of the mortgaged premises with an unpaid balance of the mortgage debt, the burden is on the plaintiff to show an assumption of the debt by the grantee; such assumption not being implied from the conveyance.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by F. S. Heffernan against A. T. Weir. From a judgment for defendant, plaintiff appeals. Affirmed.

Heffernan & Heffernan, for appellant. Vaughan & Coltrane, for respondent.

REYBURN, J.

From the meager record, this appears to be an action to charge defendant upon a contract of assumption of the balance unpaid on a bond executed by John R. Marsh, originally secured by a deed of trust upon realty in Greene county, under the provisions of which, enforcing the right of sale, the mortgage indebtedness has been partially paid. The appellant, in lieu of a perfect transcript of the record and proceedings in the cause, has presented a certified copy of the record entry of the judgment appealed from, and the other proceedings constituting the abbreviated record authorized by section 813 of the Revised Statutes. The appellant's statement in print filed in this court fails to comply with the rules—especially rule 15— in many respects. The pleadings, neither abstracted nor at length, are contained therein; and the testimony, as abstracted, is evidently only part of the proof, documentary and oral, offered at the hearing. In the absence of the circuit judge of Greene county, the case was tried before a member of the Springfield bar, selected; and at the close of the hearing the court rejected the declarations of law prayed by plaintiff, and gave several at defendant's request, including a declaration that, upon the pleadings and the evidence in the case, the plaintiff was not entitled to recover. From the foregoing outline, it is manifest that the record is in such a condition that it is impossible for us to fully review the case. As the proceeding is denominated and treated by appel...