Markowitz v. University City
| Decision Date | 17 May 1960 |
| Docket Number | No. 30332,30332 |
| Parties | Morris MARKOWITZ and Dora Markowitz (Plaintiffs), Respondents, v. UNIVERSITY CITY (a Municipal Corporation), (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Marvin E. Boisseau, University City, for appellant.
Gerald Cohen, St. Louis, for respondents.
DOERNER, Commissioner.
Plaintiffs' petition in equity is in two counts. In count one plaintiffs alleged that the defendant had trespassed on their land and had taken a portion of their property for public use by constructing part of a street thereon. They asked that the defendant be restrained and enjoined from continuing the trespass and from using their property as a highway. In count two plaintiffs adopted the allegations as to the trespass and prayed for actual and punitive damages. The court denied plaintiffs' prayer for injunctive relief, but found that the defendant had wrongfully trespassed on plaintiffs' property and awarded them damages of $750, from which monetary judgment against it defendant appealed.
Plaintiff moved to dismiss the appeal on the grounds that defendant's brief failed to comply with former Supreme Court Rule 1.08, 42 V.A.M.S., in that (1) the jurisdictional statement is a mere conclusion; (2) it does not contain a fair and concise statement of the facts; and (3) there is almost a total absence of page references to the transcript in both the purported statement of facts and the argument.
Since this case was argued Supreme Court Rule 1.08 has been superseded by our new Rules of Civil Procedure. However, new Rule 83.05, V.A.M.R., is substantially the same as old Rule 1.08 and requires the appellant's brief to contain the same matter as did the old rule.
We have reached the conclusion that plaintiffs' motion should be sustained. While the jurisdictional statement is adequate, defendant's brief is exceedingly deficient as respects the purported statement of facts, and as to page references. The statement of facts in defendant's brief is devoted well nigh entirely to its own evidence, to the almost total exclusion of evidence favorable to the plaintiff upon which the chancellor based his findings. This is not a compliance with the requirement that appellant's brief shall contain a fair and concise statement of the facts. In Wipfler v. Basler, Mo., 250 S.W.2d 982, 984-985, it was said:
...
To continue reading
Request your trial
-
Moore v. Rone
...Mo., 338 S.W.2d 114, 116-118(6-9); Turner v. Calvert, Mo., 315 S.W.2d 118; Jacobs v. Stone, Mo., 299 S.W.2d 438; Markowitz v. University City, Mo.App., 335 S.W.2d 455; Wildermuth v. Fred Medart Mfg. Co., Mo.App., 330 S.W.2d 126; Lane v. Nixon, Mo.App., 326 S.W.2d 418; State ex rel. State Hi......
-
Adoption of P. J. K., In re, 8065
...instance a false, distorted, or imperfect impression of the facts.' Wipfler v. Basler, Mo., 250 S.W.2d 982, 984(3); Markowitz v. University City, Mo.App., 335 S.W.2d 455, 456. '(A) statement which omits the essential facts on which an appellant's adversary relies cannot be deemed a substant......
-
Vodicka v. Upjohn Co.
...with the requirements for a sufficient statement of facts, alone, constitutes ground for dismissal of an appeal. Markowitz v. University City, 335 S.W.2d 455 (Mo.App.1960)." In State v. White, 529 S.W.2d 22 (Mo.App.1975), this court acknowledged that the dismissal of civil cases for noncomp......
-
Ritter v. Ritter
...to dismissal. In re Adoption of P.J.K., Mo.App., 359 S.W.2d 360, 363; Glick v. Glick, Mo.App., 360 S.W.2d 333, 335; Markowitz v. University City, Mo.App., 335 S.W.2d 455. We consider the appeal subject to dismissal; but the custody (and hence the welfare) of infant children is involved, and......