Kersting v. City of Ferguson

• Decision Date: 18 October 1966
• Docket Number: No. 32262,32262
• Parties: Carl V. KERSTING et al., Plaintiffs-Appellants, v. CITY OF FERGUSON, Missouri, a Municipal Corporation et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 165

408 S.W.2d 165

Carl V. KERSTING et al., Plaintiffs-Appellants, v. CITY OF FERGUSON, Missouri, a Municipal Corporation et al Defendants-Respondents.

No. 32262.

St. Louis Court of Appeals, Missouri.

Oct. 18, 1966.

Lester W. Duggan, Jr., Florissant, for plaintiffs-appellants.

Carleno & Nick, Ferguson, for defendants-respondents.

BRADY, Commissioner.

This case comes to the writer upon recent reassignment. Plaintiffs' amended petition alleged that they are representatives of a class of resident taxpayers and property owners in Ferguson, Mo., and that they are proceeding under the provisions of our Statutes relating to declaratory judgment actions. (See § 527.010 et seq., R.S.Mo.1959, V.A.M.S.) The theory of plaintiffs' action is that the Charter of the City of Ferguson, Mo., is void, totally and as to certain individual sections thereof, as violative of the constitution of this State, and that certain acts of the City Council are void as violative of certain provisions of the Charter of the City and the Statutes of this State. The trial court sustained defendants' motion to dismiss and plaintiffs perfected their appeal in the Supreme Court of this State. The case was transferred to this court on the grounds that the motion to dismiss raised both constitutional and nonconstitutional issues, and since '* * * the record does not indicate which issue was decided, it will be deemed that the trial court ruled the case on applicable nonconstitutional grounds and that the constitutional grounds were avoided in the trial court and are therefore not in the case on appeal. * * *' (Mo., 388 S.W.2d 794, l.c. 796)

We are first faced with the disposition of the defendants' motion to dismiss this appeal on the grounds that the plaintiffs' brief fails to comply with the provisions of Civil Rule 83.05(a), (c), (e), V.A.M.R. It is the defendants' position the plaintiffs' brief is totally violative of Civil Rule 83.05(e), supra, in that none of the points relied upon state what actions or rulings of the trial court are claimed to be erroneous nor why it is contended the trial court was wrong in any ruling it made, but merely consists of abstract statements of law which are in no way related to any action or ruling of the trial court. In this respect it is to be noted that the appellants' points as stated in their brief are couched in language similr to the following examples: 'Point V. * * * 2. The OFFICERS of a municipality, as distinguished from persons holding administrative POSITIONS, are required to be residents of the State for one year next before appointment or election. The public policy of this State obviously demands this requirement. * * * 4. Officers of the City must have some definite tenure of office (Tr. 24, 25). * * * 6. The power to tax shall not be surrendered, suspended or contracted away. Taxes may be levied and collected for public purposes only and shall be uniform upon the same class of subjects and shall be payable during the fiscal year or calendar year in which the property is assessed. All laws exempting property from taxation not exempt by the Constitution shall be void. All persons are entitled to equal rights and opportunity under the law (Tr. 32, 35) * * *.'

The defendants place their main reliance upon the failure of the plaintiffs to comply with Civil Rule 83.05(c), supra, in that the plaintiffs' brief does not even contain a page entitled 'Statement of Facts', and that nowhere in plaintiffs' brief does there appear any statement which could be fairly construed as '* * * The fair and concise statement of the facts * * * in the form of a statement of the facts relevant to the questions presented for determination. * * * ' With regard to this matter it should be noted that the amended petition is lengthy and involved. It occupies approximately seventeen pages of the transcript and consists of two Counts. Count I contains seven paragraphs, one of which is further divided into eighteen subparagraphs. The second Count consists of eighteen separate paragraphs most of which contain at least two separate and distinct allegations of wrongful action by the City Council.

Faced with the defendants' motion to dismiss this appeal, the plaintiffs included with their reply brief a motion to amend their original brief by adopting the Statement of Facts contained in the defendants' brief and incorporating that statement into the plaintiffs' brief by specific reference thereto the same as if it were fully set forth therein. The plaintiffs also moved that we allow them to further amend their brief by inserting in their brief '* * * following the words 'Points Relied On' the following: 'The trial court erred in sustaining the Respondents' Motion to Dismiss Counts I and II of the amended petition, and Appellants offer the following in support of that allegation': * * *.' These motions were taken with the case upon submission and are now for our ruling.

The concern repeatedly voiced by the appellate judiciary regarding obedience to Rule 83.05, supra, is based upon an appellant's duty (1) to the court, and (2) to opposing counsel. With regard to his first duty it has been said: '* * * The rules of appellate practice in hand are simple and plain. They fill no office of mere red tape, or as a show of surface routine. To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate courts in getting at the right of a cause. * * *' Sullivan v. Holbrook et al., 211 Mo. 99, 109 S.W. 668, l.c. 670. Considering an appellant's...