Noble v. Brinson

• Decision Date: 23 December 1910
• Citation: 132 S.W. 1068,231 Mo. 640
• Parties: NOBLE et al. v. BRINSON et al.
• Court: Missouri Supreme Court

132 S.W. 1068

231 Mo. 640

NOBLE et al. v. BRINSON et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1910.

1. APPEAL AND ERROR (§ 502) — RECORD — MOTION FOR NEW TRIAL.

The record proper must show that a motion for a new trial was filed before the court on appeal has any right to consider it, or to review any matter of exception preserved in the record.

2. APPEAL AND ERROR (§ 635) — RECORD — FAILURE TO SHOW MOTION FOR NEW TRIAL —DISMISSAL.

An appeal will not be dismissed for failure of the abstract of the record to show that a motion for new trial was filed, but the record will be considered and the pleadings and judgment inspected; and, if the former present a cause of action and the latter is predicated thereon and responsive to the issues joined, the judgment will be affirmed.

3. JUDGMENT (§ 207)—IN FAVOR OF PERSON IN DEFAULT.

In an action against several defendants to quiet title, it is error to give judgment in favor of one of the defendants who was duly served, but made default.

Error to Circuit Court, Holt County; Wm. C. Ellison, Judge.

Action by Henry C. Noble, Jr., and others against Jonathan Brinson and others to quiet title. From a decree giving plaintiffs an undivided 10/12 of the land and in favor of two defendants for the remaining 2/12, plaintiffs bring error. Reversed as to one of the two defendants, with directions to enter judgment.

This is a suit, instituted under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet title to a certain tract of land situate in Holt county, Mo., particularly described in the pleadings. A trial was had before the court, and the decree was for plaintiffs for an undivided ten-twelfths thereof, and in favor of defendants Richards and William Huiatt for one undivided twelfth each. From that judgment plaintiffs sued out a writ of error from this court.

Frank Petree and H. S. Kelley, for plaintiffs in error. J. M. Davis & Son, for defendants in error.

WOODSON, J.

1. Counsel for defendant W. H. Richards timely raised the point that the printed abstract of the record proper filed in this court by plaintiffs does not show that any motion for a new trial was filed in the case. Counsel for plaintiffs confess that the abstract of the record proper does not show that such motion was filed, and then filed in this court a motion praying leave to file an additional or supplemental abstract showing that the record proper does show that said motion was filed and in due time. This motion is vigorously opposed by counsel for said defendant. However, the bill of exceptions filed in the cause shows that the motion for new trial was filed and in due time. Upon that showing counsel for plaintiffs insist that the court should grant them leave to file a supplemental abstract supplying the defect suggested in the record. The uniform ruling of this court, except in very rare cases, of which this is not one, has been that the abstract cannot be amended after objections have been filed pointing out its insufficiency, otherwise the beneficial object of the rule would be practically destroyed, for the reason that if, when the deficiencies are suggested, the opposite party should be permitted to amend the same, then the time and labor consumed by this court and counsel in investigating the matter would be totally lost; and, if permitted, the party in default would not be inconvenienced or suffer loss by reason of having failed to comply with the rules of the court, but would encourage loose practice in that regard. Moreover in those cases where the party relies exclusively upon his motion to dismiss, which he has a perfect right to do, and files no brief and argument upon the merits of the case, the cause, if leave to amend should be granted, would have to be continued in order that the moving party might have an opportunity to prepare his case for hearing upon its merits. That would lead to delays, disarrange the docket, and cause endless confusion in the administration of the law. Such a practice should not be tolerated, and does not...