Metropolitan Properties Co. v. Rideout

• Decision Date: 10 September 1940
• Docket Number: 36622
• Citation: 142 S.W.2d 1055,346 Mo. 787
• Parties: Metropolitan Properties Company, a Corporation, v. William M. Rideout, William J. Hoffman, Fred S. King, Gustav Sauter, Teresa Kopfer, Fred Schuepfer, Erwin C. Brinkmann, Charles W. Brinkmann, Jr., Edward J. Brinkmann and Fred Moehlenhof, Appellants
• Court: Missouri Supreme Court

142 S.W.2d 1055

346 Mo. 787

Metropolitan Properties Company, a Corporation, v. William M. Rideout, William J. Hoffman, Fred S. King, Gustav Sauter, Teresa Kopfer, Fred Schuepfer, Erwin C. Brinkmann, Charles W. Brinkmann, Jr., Edward J. Brinkmann and Fred Moehlenhof, Appellants

No. 36622

Supreme Court of Missouri

September 10, 1940

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Appeal dismissed.

D Calhoun Jones for appellants.

Orville W. Richardson for respondent.

OPINION

Tipton J.

This is an appeal from the circuit court of St. Louis County. That court set aside a foreclosure sale of a triangular tract of land in lot 79 of Carondelet Common, south of the River des Peres, located in St. Louis County, held in the year 1936 under power of sale contained in a deed of trust. The decree quieted title in respondent, subject to a lien of two notes for one thousand dollars each, which were secured by this deed of trust. It also set aside certain subsequent deeds of trust placed upon this real estate by the purchaser at the foreclosure sale and enjoined certain of the appellants from proceeding to erect a gasoline filling station on this property on the theory that it had previously been dedicated to cemetery purposes.

From the view we take of this case, it will be unnecessary to state the facts on the merits of the case as we think appellants' brief is insufficient to preserve anything for our review.

Appellants' assignments of error and points and authorities are as follows:

"ASSIGNMENTS OF ERROR.

"First The findings, judgment and decree are erroneous because the Court refused to hear all of the evidence offered by defendants on the question of the intent and the powers of the dedicators and owners of the cemetery and are inconsistent with that which was heard.

"Second: The findings, judgment and decree are erroneous in that they are based on no finding of fact which could deprive a deed of trust holder of his rights by a subsequent platting.

"Third: The Court erred in refusing to receive evidence on the attitude of plaintiff with respect to foreclosure and use of other pieces of property by it owned and in allowing the cross-examination of a witness who was permitted to state nothing more than his name and whose testimony constituted a complete departure from the pleadings."

"POINTS AND AUTHORITIES.

"I.

"The findings, judgment and decree are erroneous because the Court refused to hear all of the evidence offered by defendants on the question of the intent and the powers of the dedicators and owners of the cemetery are inconsistent with that which was heard.

"1. Intention is the vital principle in construing any plat of dedication.

"Mo. Institute for Education of Blind v. How, 27 Mo. 211.

"2. A cemetery corporation may sell such portions of its lands as are not used for burial purposes so long as lot owners are not deprived of the use of or access to their lots, and the integrity of the cemetery is not interfered with.

"McDonald v. Monongahela Cemetery Co., 75 A. 38;

"City of Tacoma v. Tacoma Cemetery Co., 68 P. 723.

"II.

"The findings, judgment and decree are erroneous in that they are based on no finding of fact which could deprive a deed of trust holder of his rights by a subsequent platting.

"McShane v. Moberly, 79 Mo. 41;

"Granite Bituminous Paving Co. v. McManus, 244 Mo. 184;

"Johnson v. Ferguson, 329 Mo. 363."

Our Rule 15 provides, among other things, that "the brief for appellant shall distinctly allege the errors committed by the trial court, and shall contain in addition thereto: (1) A concise statement of the grounds on which the jurisdiction of this court is invoked; (2) a fair and concise statement of the facts of the case without reiteration, statements of law, or argument; (3) a statement, in numerical order, of the points relied on, with citation of authorities thereunder, and no reference will be permitted at the argument to errors not specified; and (4) a printed argument, if desired. . . . No brief or statement which violates this rule will be considered by the court."

"In an assignment of errors the appellant should distinctly state the errors relied upon for reversal. Though separately alleged, they frequently appear as broadly expressed in a motion for a new trial. It is doubtless because of such generality of presentation that subdivision 2 (now subdivision 3) of...