Schoenhals v. Pahler
| Decision Date | 08 November 1954 |
| Docket Number | No. 2,No. 44248,44248,2 |
| Parties | Ellinora SCHOENHALS, Appellant, v. Louise PAHLER and Mildred E. Church, Respondents |
| Court | Missouri Supreme Court |
Horace Merritt, St. Joseph, for appellant.
Goldman & Goldman, Abe Goldman, Strop & Strop, C. F. Strop, Jr., St. Joseph, for respondents.
The appellant's petition is in two counts: Count one is an action to determine title to lots 6 and 7, block 56, North St. Joseph Extension, an addition to the city of St. Joseph, Missouri. This count asked that a deed to these lots be set aside and that title be quieted in appellant. The second count is an action for damages in the sum of $1,000 and punitive damages in the sum of $1,500.
The respondents filed a motion asking the trial court to dismiss appellant's petition because appellant had previously filed an action in two counts which had been dismissed with prejudice. The first count in that petition asked that title be determined to the above described real estate and the second count was for actual and punitive damages. The appellant attempted to have this dismissal with prejudice set aside by filing a motion in the nature of a writ of error coram nobis. The trial court denied this motion and its action was affirmed by this court. See Schoenhals v. Pahler, Mo., 257 S.W.2d 662. In the case at bar, respondents' motion also contained a request that this action be stayed until the costs in the first suit were paid.
After a hearing was held upon the motion in this action, the trial court dismissed appellant's petition. The record entry in this case is,
Respondents have filed a motion to dismiss this appeal for the reason that appellant's brief fails to comply with 42 V.A.M.S. Rule 1.08 of this court.
Respondents contend that appellant's brief fails to show wherein this court acquires jurisdiction of this litigation. The appellant's brief says, 'This is a suit involving title to real estate, * * * therefore appealed to this Honorable Court * * *.' This bare statement is a conclusion and is insufficient under the rules. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907.
We agree with respondents that appellant's statement of facts omits essential facts on which respondents rely, in that there is no mention of the fact that appellant's claim of title to the real estate involved was determined by the prior suit, which judgment was affirmed by this court. Therefore, the statement of facts is not 'a fair and concise statement of the facts without argument.'
Appellant's first paragraph under her 'Assignment of Errors, Points and Authorities' is as follows:
'The Court erred in sustaining defendant's motion to dismiss this second suit after dismissal of her first suit, the court giving a reason for sustaining said motion that the costs had not been paid in the first suit, thus ignoring and disregarding the receipt of the clerk of the Circuit Court for the costs in said first suit presented by plaintiff as her Exhibit No. 1 appearing upon page 59 of the Transcript of Record.'
This assignment of error is not sustained by the record. The trial court dismissed plaintiff's petition after a hearing on respondents' motion to dismiss...
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