Pfotenhauer v. Ridgway
| Decision Date | 09 April 1925 |
| Citation | 271 S.W. 50,307 Mo. 529 |
| Parties | PAUL PFOTENHAUER et ux., Appellants, v. J. R. RIDGWAY et al |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.
Dismissed.
Geo J. Grayston and Chas. M. Grayston for appellants.
(1) The court erred in rendering judgment in favor of the defendants. (2) The court erred in overruling plaintiffs' motion for new trial. (3) The court erred in admitting the testimony of Harry S. Miller to the effect that plaintiffs had consulted him as an attorney for the purpose of drafting a new contract and in their conversations with him had stated in substance that they at that time knew that the facts had been misrepresented to them by the defendants as to the amount of business actually written by the defendants as agents for the association, and its earnings during the time of the defendants' ownership thereof, and as to all facts testified to by said witnesses tending to show information or knowledge of the fraud perpetrated upon them prior to the execution of the said second contract.
Howard Gray, Norman A. Cox and Hugh Dabbs for respondents.
Respondents move the court to dismiss the appeal. Appellants and appellants' counsel have failed in their brief filed to furnish the court with a fair and concise statement of the facts in the case as required by Sec. 1511, R. S. 1919, and as required by Rule 15 of this court.
This is a suit in equity to rescind a contract, and for a judgment against the respondents for certain money alleged to have been paid by the appellants to the respondents in consummation of the contract; and for the re-delivery by the respondents to appellants of a certain share of stock, and the cancellation of a mortgage on certain lots in Baxter Springs, Kansas made by the appellants to the respondents, and for an accounting.
After a hearing the court found the issues for the respondents and entered a judgment in their favor, whereupon the appellants filed an affidavit for an appeal to this court, which was granted.
In the orderly course of procedure the necessity of rules for the guidance of litigants seeking a review of cases in this court has long been recognized. More than fifty years ago the General Assembly, supplementing the inherent power of the court in this regard, enacted a statute (Sec. 38, Laws 1871, p. 50; now Secs. 1480 and 1481, R. S. 1919) declaratory of the authority of the Supreme Court to make and promulgate suitable rules and regulations deemed necessary in carrying into effect the provisions of the foregoing statute. Further than this a statute (Sec. 1511, R. S. 1919) provides that "on appeals and writs of error each party shall . . . make out and furnish the court with a clear and concise statement of the case and the points intended to be insisted on in argument."
The Supreme Court, in conformity with the legislative declaration of its power, among other mandatory requirements necessary to be complied with to authorize a review upon appeal or writ of error, has prescribed as a part of its Rule Fifteen that
It is appropriate first to consider the sufficiency of appellants' formal assignments of error.
The first, that the court erred in rendering judgment in favor of the defendants, is too broad to entitle it to consideration. The purpose of an assignment is to point out specifically what is relied on as error. A judicial recognition of an error couched in the language of the foregoing would render it the duty of the appellate court to sift the record to determine the merit of an assignment -- a task it is not incumbent upon it to perform.
The second assignment, that the court erred in denying the motion for a new trial, is likewise too general to be available as a ground of error. While the motion for a new trial if properly framed may, as we have frequently ruled, serve the purpose of a formal assignment of errors, a general assignment that error was committed in the overruling of the motion adds nothing to its force or effectiveness and does not merit consideration as a formal assignment. In harmony with this reasoning it has been held in another jurisdiction that an assignment of error based on the overruling of a motion will not be noticed where the court's action thereon is otherwise apparent of record, as in the case at bar. [Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487.]
The third assignment is based upon error alleged to have been committed in the admission by the trial court of incompetent testimony. An assignment of this character in an equity case complies with no statute or rule of court; it tends to preserve no right of the appellant, nor to emphasize a duty incumbent on the court. It is a familiar rule of procedure in equity cases that where an appellant brings up the entire record the appellate court will sift the testimony and separate the competent from the incompetent, regardless of the rulings of the trial court thereon. [Rinkel v. Lubke, 246 Mo. 377; Hiemenz v. Harper, 275 Mo. 380; Griffin v. Nicholas, 224 Mo. 275.] This assignment therefore answers no necessary or useful purpose and is superfluous.
There is lacking, therefore, from the record such a collective assignment of errors as will authorize a review of the case, unless, as we have indicated, the appellants in their required statement of Points and Authorities have clearly indicated the errors on which they rely to secure a reversal. [Coe v. Greenley, 295 Mo. 664, and cases p. 666; Vahldick v. Vahldick, 264 Mo. 529, and cases p. 532.] In the absence of these nothing is left for our consideration.
An examination of what the appellants term their "Statement, Brief and Argument," while containing a portion entitled "Points and Authorities," is found, upon an examination, to embody none of the essentials to entitle it to that designation. It is neither a clear and concise statement of the facts of the case and...
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