Lane v. Katt
Decision Date | 17 October 1967 |
Docket Number | No. 32734,32734 |
Citation | 421 S.W.2d 544 |
Parties | William E. LANE, Jr., and Katherine M. Lane, Plaintiffs-Respondents, v. Elmer KATT and Helen Greibing, Executor and Executrix of the Estate of Martin Katt, Deceased, Emillie Katt, Elmer Katt and Marie Katt, Defendants-Appellants. |
Court | Missouri Court of Appeals |
Francis Toohey, Jr., Leo J. Rozier, Perryville, for appellants.
Buerkle & Lowes, by Albert C. Lowes, Jackson, for respondents.
CLEMENS, Commissioner.
This suit for injunction and damages arose from a dispute between neighbors over the location of an old boundary-line fence. Plaintiffs got a judgment and the defendants appeal.
The disputed area is a strip 8 feet by 600 feet, flanked by the fence. In the spring of 1963 the defendants cut down a tree in the fence line, tore up part of the fence, and declared their right to move the rest of it. Thereupon, the plaintiffs sued for the injunction and damages.
Admittedly, the fence stood on defendants' land, but plaintiffs relied on a written agreement executed in 1924 by the parties' predecessors in title. By that document defendants' predecessors had agreed not to move the fence without the consent of plaintiffs' predecessors. Although plaintiffs' predecessors had sold their land, they had not consented to moving the fence. On submission of the case the court enjoined defendants Martin Katt, Elmer Katt and Marie Katt from disturbing the fence. Further, the court gave plaintiffs $25 actual and $25 punitive damages against those three defendants. They appeal. (On September 18, 1967, we ordered that 'Elmer Katt and Helen Greibing, Executor and Executrix of the Estate of Martin Katt, deceased, be and they are hereby substituted as appellants in place of the said Martin Katt * * *.')
We are faced first with plaintiffs' motion to dismiss defendants' appeal. Plaintiffs contend that the defendants' brief fails to comply with Civil Rule 83.05(a)(3) and (e), V.A.M.R., which requires an appellant's 'points relied on' to be specific. We have concluded that defendants' points relied on are so general that they preserve nothing for review. Their points:
motion to dismiss for the reason that all the parties in interest were not made parties to this action for a declaratory judgment.
petition was contrary to the weight of the evidence.
In Pauling v. Rountree, Mo.App., 412 S.W.2d 545(1), we stressed an appellant's obligation under Civil Rule 83.05(a) and (e), V.A.M.R., saying:
Considered together, the defendants' four points relied on here run afoul of the rule that abstract statements of law or fact will not be considered. This, because they 'do not state the actions or rulings of the court claimed to be erroneous and why the court was wrong.' Turner v. Calvert, Mo., 315 S.W.2d 118(2), and Repple v. East Texas Motor Freight Lines, Mo., 289 S.W.2d 109(3). And, considered single, each of defendants' points is similar to points in other briefs that have been condemned as defective under our civil rules.
Defendants' first point concerns omitted parties in interest. The point tells neither opposing counsel nor this court who those parties are, what their interest is, or why they are necessary. The point fails to say why the trial court erred. A similar point was condemned in the case of In re Alexander's Estate, Mo., 360 S.W.2d 92(4).
Defendants' next point that the court erred in admitting aerial photographs is an abstract assertion. In Wachter v. Grogan, Mo.App., 410 S.W.2d 550(10), we condemned a point like that because it did not say why the ruling was erroneous. See, also, McGrail v. Schmitt, Mo., 357 S.W.2d 111(11).
Defendants' last two points say the judgment was contrary to the weight of the evidence. For many years such assignments have been held too general to preserve anything for review. Matthews v. Karnes, 320 Mo. 962, 9 S.W.2d 628(5), and Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d 606(1).
In declining to accept abstract assertions as proper points relied on, we said in Pauling v. Rountree, supra, 412 S.W.2d l.c. 549(11): ...
To continue reading
Request your trial-
Earney v. Clay
...Keith v. Tucker, 483 S.W.2d 430, 434(2) (Mo.App.1972). The rule applies to appellate review of court-tried cases. Lane v. Katt, 421 S.W.2d 544, 546(6) (Mo.App.1967). Point I does not set forth 'why' executor's interest in the sales should condemn them, 'why' he did not exercise due care or ......
-
James' Estate, In re
...case, Schlanger v. Simon, Mo., 339 S.W.2d 825, 828(3); Pfotenhauer v. Ridgway, 307 Mo. 529, 534, 271 S.W. 50, 51(5); Lane v. Katt, Mo.App., 421 S.W.2d 544, 546(6), and we decline to do so The appellants' further and final assignment of error is that the trial court erred in ordering James S......
-
Adams v. White
...to be specific. Boyd v. Boyd, Mo.App., 459 S.W.2d 8, 12(10). This rule applies to appellate review of court tried cases. Lane v. Katt, Mo.App., 421 S.W.2d 544, 546(6). For the reasons stated, the judgment is STONE and HOGAN, JJ., concur. On Motion for Rehearing or to Transfer PER CURIAM. Th......
-
Bensinger v. California Life Ins. Co.
...out what actions of the court are sought to be reviewed and 'wherein and why' they are erroneous. Civil Rule 83.09, V.A.M.R.; Lane v. Katt, Mo.App., 421 S.W.2d 544. The fourth point is also an abstract statement which does not set out why plaintiff is entitled to summary judgment. Furthermo......