Royle Mining Company v. The Fidelity & Casualty Company of New York

• Decision Date: 08 January 1912
• Citation: 142 S.W. 438,161 Mo.App. 185
• Parties: ROYLE MINING COMPANY, Respondent, v. THE FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant
• Court: Missouri Court of Appeals

142 S.W. 438

161 Mo.App. 185

ROYLE MINING COMPANY, Respondent, v. THE FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant

Court of Appeals of Missouri, Springfield

January 8, 1912

161 Mo.App. 185 at 211.

Original Opinion of December 4, 1911, Reported at: 161 Mo.App. 185.

Motion for rehearing denied.

NIXON P. J. Cox, J., concurs. Gray, J., not sitting.

OPINION

ON MOTION FOR REHEARING.

NIXON P. J.--

At the oral argument of this cause on the merits, respondent's attorney made the oral contention before taking up his argument of the merits that appellant's brief was not drawn in compliance with our Rule No. 18. [156 Mo.App. 16, 122 S.W. 7.] The two paragraphs of that rule which are material in this connection are as follows:

"All briefs shall be printed in not less than ten point (long primer) type, and shall contain separate and apart from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of authorities appropriate under each point. Any brief failing to comply with this rule may be disregarded by the court."

"The brief filed by appellant shall distinctly and separately allege the errors committed by the trial court, and no reference will be permitted at the argument to the errors not thus specified, unless for good cause shown this court shall otherwise direct."

It will be noticed that each of these paragraphs carries a penalty. There are two other paragraphs in the same rule, neither of which carry a penalty.

Rule 21 (156 Mo.App. 16, 122 S.W. 7), is as follows: "Penalty for failure to comply with rules 12, 14, 15, 16 and 18.--If any appellant in any civil cause shall fail to comply with the provisions of Rules 12, 14, 15, 16 or 18, the court, when the cause is called for hearing, will dismiss the appeal, or writ of error, or, at the option of the respondent, continue the cause at the cost of the party in default. No oral argument will be heard from any counsel failing to comply with the provisions of Rule 18, unless said counsel is prevented from doing so by failure of opposing counsel."

The oral arguments were heard it appearing to the court upon a hurried examination of appellant's brief that it was in substantial compliance with the rule, but as we remember, it was understood that we would consider the matter later as to whether the appellant's brief should receive consideration. After the oral argument, respondent's attorney filed "written objections to appellant's brief," reciting that such objections had been orally made and that the respondent's attorney had obtained leave of the court at said time to put his objections in writing and file the same with the clerk, and asking, for the reason specified, that the judgment be affirmed. The written objections filed by respondent's attorney do not ask the court to disregard the appellant's brief, as contemplated by the first of the two paragraphs quoted from Rule 18, and do not ask for a dismissal of the appeal, as contemplated by Rule 21. In that paper the respondent's attorney merely "objects to this court considering any of the alleged errors of the trial court for the reason that appellant's statement, brief and argument contains no assignment of errors, as required by Rule 18," stating that appellant had shown no cause whatever for the omission. He evidently had the second of the two paragraphs (quoted above) in mind. That paragraph provides that "no reference will be permitted at the argument of errors not thus specified." Respondent's attorney did not ask to have the appeal dismissed as contemplated by Rule 21, but asked the court in his written objections to affirm the judgment. Neither Rule 18 nor Rule 21 permits such a course. If respondent's attorney desired to file a motion to affirm the judgment, he should have given the adverse party five days' notice in writing of his intention to file such motion and accompanied the notice with a copy of said motion. [Rule 25, 156 Mo.App. 17, 122 S.W. 8.]

The appellant's attorney was permitted to argue this case because it appeared, prima facie, that his brief was very carefully drawn and the arrangement and discussion so planned as to cause the respondent's attorney and the court the least possible trouble in turning to any given phase of the case. This court has established for itself the practice of hearing the arguments on motions to dismiss and motions to affirm along with the arguments on the merits, where briefs on the merits have been filed, and taking the whole matter under advisement at the same time. So, in this case, it not appearing that appellant had been guilty of a palpable violation of Rule 18, the court permitted the learned attorney for the appellant to make his argument, and took the question of the defectiveness of the brief under advisement along with the merits, with the idea if respondent's attorney were right in his contention and we should so find upon a more careful examination of the brief the appeal would be dismissed as contemplated by Rule 21. We did examine the appellant's brief with that end in view and found that the brief was prepared in substantial compliance with our rules. We found in appellant's brief first a very complete statement of the substance of the pleadings, the issues finally evolved, the provisions of the indemnity policy, the evidence material for our consideration, and the history of the litigation,--each step preceded by a topical heading for the convenience of the respondent and the court. On page 36 we find the following statement: "Appellant urges as grounds for reversal, and presents to this court, the following: Points and Authorities." Under this is, "I. The Constitutional Question." Then, in black-face type, appear in numerical order the points relied on for reversal under that general heading, with authorities beneath. And so of the other points relied on for reversal. We have no rule which requires an "assignment of errors" in the sense used in appel...