School Services of Mo., Inc. v. Caton

• Decision Date: 02 October 1967
• Docket Number: No. 24664,24664
• Citation: School Services of Mo., Inc. v. Caton, 419 S.W.2d 954 (Mo. App. 1967)
• Parties: SCHOOL SERVICES OF MISSOURI, INC., Appellant, v. Buddy G. CATON, Respondent.
• Court: Missouri Court of Appeals

Page 954

419 S.W.2d 954

SCHOOL SERVICES OF MISSOURI, INC., Appellant, v. Buddy G. CATON, Respondent.

No. 24664.

Kansas City Court of Appeals, Missouri.

Oct. 2, 1967.

Lynn B. Nelson, Kansas City, for appellant.

Louis Wagner, Kansas City, for respondent.

HOWARD, Presiding Judge.

This is a suit on a promissory note for the face amount of $1,000.00, together with $100.00 attorney's fees, wherein trial to the court without a jury resulted in a judgment for the respondent, maker of the note. Appellant has duly appealed to this court.

The respondent, Buddy Caton, enrolled for a series of dance lessons at the Fred Astaire Studio in Kansas City, Missouri. Appellant contends that the promissory note in the amount of $1,000.00 payable to Fred Astaire Studio was given in payment of this course of dance lessons. The note was sold to appellant on the day after its date. Appellant sues thereon claiming to be a holder in due course and thus not subject to the defenses that Caton might have against the payee, Fred Astaire Studio. Respondent defends on the basis of fraud, contending that he was induced to sign the note in blank, and upon a failure of consideration, contending that he never received the dance lessons for which the note was given, and that appellant took the note with knowledge of such infirmities. It appears that on the date in question, appellant bought an unspecified number of notes from the Fred Astaire Studio for which he paid $10,000.00 and among which was respondent's note. At that time, appellant was buying all of the notes of the studio and under this arrangement he purchased a large number of notes, the total number being well over 100. In the view we take of the case, a more detailed statement of the facts and issues is not required.

Appellant's brief contains only one assignment under Points and Authorities. This reads in its entirety 'The Court Erred Because the Finding and Judgment of the Court Are Against the Weight of the Credible Evidence'. We have concluded that this point presents nothing for review and because of this violation of Civil Rule 83.05, V.A.M.S., this appeal must be dismissed. Civil Rule 83.05 sets out the requirements for briefs on appeal. 83.05(a)(3) requires that the brief for appellant shall contain: 'The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder; * * *' It is further provided in Rule 83.05(e) that 'The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.'

The point as it appears in appellant's brief only sets out that the decision of the trial court is 'against the weight of the credible evidence'. It has repeatedly been held that such a statement that the verdict or judgment or decision of the Court is 'against the weight of the evidence' constitutes only an abstract statement, in violation of the specific provision of Civil Rule 83.05 quoted above, and that such an abstract statement presents nothing for review on appeal and further that the question concerning the weight of the evidence attempts to present a matter which is essentially for the consideration of the trial court and is not a matter which is ordinarily considered by the appellate court. Among the many cases so holding, see Stanziable v. Musick, Mo., 370 S.W.2d 261; In re Hyman's Adoption, Mo.App., 297 S.W.2d 1; and Paro v. Pennsylvania Railroad Company, Mo.App., 348 S.W.2d 613.

The point relied on does not state why appellant is contending that the court was wrong in its decision. If we were to attempt an appellate review based upon this point, we would be required to perform the duties of counsel for appellant and search the record on appeal as well as the argument portion of the brief of appellant in order to ascertain appellant's contentions and determine whether or not the trial court erred. It is the duty of counsel to perform this function and not the duty of the appellate court. See, in addition to the cases heretofore cited, Ambrose v. MFA Co-operative Association of St. Elizabeth, Mo., 266 S.W.2d 647, and Jones v. Farm Bureau Mutual Insurance Company, Mo.App., 284 S.W.2d 11....