Mason v. Warnke

• Decision Date: 02 May 1932
• Citation: 49 S.W.2d 200,226 Mo.App. 1244
• Parties: U. G. MASON, APPELLANT, v. H. G. WARNKE, RESPONDENT
• Court: Kansas Court of Appeals

49 S.W.2d 200

226 Mo.App. 1244

U. G. MASON, APPELLANT, v. H. G. WARNKE, RESPONDENT

Court of Appeals of Missouri, Kansas City

May 2, 1932

Appeal from the Circuit Court of Morgan County.--Hon. Henry J Westhues, Judge.

AFFIRMED.

Judgment affirmed.

Brennan & Fraker for appellant.

A. J Bolinger for respondent.

OPINION

ARNOLD, J.

An action in damages for conversion. The cause was tried to the court and jury, resulting in a verdict and judgment for defendant. A motion for new trial was overruled and plaintiff appeals.

At the outset, in his brief, defendant attacks the sufficiency of the record proper and plaintiff's brief. The record proper, as presented in the printed abstract of the record, consists only of the pleadings, to-wit, the first amended petition which is in four counts; the second amended petition in one count; defendant's answer to the first cause of action and answer to plaintiff's second cause of action, and defendant's counterclaim; plaintiff's reply to defendant's answer and counterclaim. This is the sum total of the record of the proceedings contained in the printed abstract before us. There is no reference therein to a verdict and judgment, nor is there any statement that a motion for a new trial was filed and overruled, that a bill of exceptions was ever filed with the trial court, nor that it was ever signed and certified by said court.

However, we do find among the files of the case a typewritten transcript, aside from the printed record, which contains the necessary elements omitted from the printed record, together with the certificate of the trial judge. This transcript, we consider, cures the vices of the printed abstract of the record proper. While a most irregular situation is thus presented, the loose files in the case show that plaintiff had much trouble in securing from the court reporter a transcript for appeal. Under these facts, we hold the record proper to be sufficient. But a more serious situation arises relative to the sufficiency of plaintiff's statement of facts, in that it fails to comply with the rules of this court, and especially that part of our rule 16 (224 Mo.App. 3), which insofar as applicable here, reads as follows:

"The statement filed by the appellant shall consist of a clear and concise statement of the case without argument, reference to issues of law or repetition of testimony of witnesses."

The statement of facts presented in plaintiff's brief fails to give us a clear understanding of the case. The statement consists of fourteen...