State v. Parrish

• Decision Date: 19 March 1925
• Docket Number: (No. 25750.)
• Citation: 270 S.W. 688
• Parties: STATE, ex Inf. of BARRETT, Atty. Gen., ex rel. McCANN, v. PARRISH et al.
• Court: Missouri Supreme Court

270 S.W. 688

STATE, ex Inf. of BARRETT, Atty. Gen., ex rel. McCANN, v. PARRISH et al.

(No. 25750.)

Supreme Court of Missouri, Division No. 2.

March 19, 1925.

Appeal from Circuit Court, Taney County; Fred Stewart, Judge.

Quo warranto by the State, on the information of Jesse W. Barrett, Attorney General, on the relation of E. A. McCann, against J. C. Parrish and others. From an adverse judgment, relator appeals. Appeal dismissed.

W. R. Adams, of Forsyth, and John F. Moore, of Ozark, for relator by consent of Jesse W. Barrett, Atty. Gen.

R. C. Ford, of Forsyth, for respondents.

Explanation.

BAILEY, C.

This case came to the undersigned, on re-assignment since the adjournment of the January call, 1925, of this division.

The cause was originally pending in this court and, through mistake, was erroneously transferred to the Springfield Court of Appeals. The latter properly certified the case back to this court for our determination, and in its opinion, transferring the case, said:

"The purpose of the proceeding here is undoubtedly to challenge the validity of the organization of the consolidated school district, and to oust the directors thereof."

Section 12 of article 6 of our, Constitution provides that the Supreme Court shall have jurisdiction on appeal in all cases involving "the title to any office under this state. * * *" See, also, the following authorities: State ex inf. Thompson v. Bright, 298 Mo. loc. cit. 345, and cases cited (250 S. W. 599); State ex inf. West v. Consolidated School District, 290 Mo. loc. cit. 138, 139, 234 S. W. 54; State ex inf. Barker v. Smith, 271 Mo. 168, 96 S. W. 17; State ex inf. Wright v. Morgan, 268 Mo. 265, 187 S. W. 54; Ramsey v. Huck, 267 Mo. loc. cit. 336, 184 S. W. loc. cit. 968; State ex inf. Sutton v. Fasse, 189 Mo. 532, 88 S. W. 1. It is manifest from the foregoing, and the record in the case, that this court alone has jurisdiction of the cause on appeal.

Opinion.

I. While appellant has filed in this court a typewritten' copy of the record and proceedings of the circuit court, without any index thereto, he has signally failed to file herein a printed abstract of the record and proceedings of the trial court, including a printed index thereto as required by law. The relator, in his amended petition, on which the case was tried, as set out in his brief, attacked the validity of consolidated school district No. 1, in said county, and sought to oust respondents as school directors of said district. The transcript on file here shows that respondents filed a voluminous return in this cause, controverting the allegations of the petition, and setting up the facts relating to their election, etc. It does not appear that any reply was filed putting in issue the affirmative allegations of said return. The transcript further discloses that the court, at the conclusion of the whole case, found for respondents and made an elaborate finding of facts, etc. The above transcript, composed mainly of carbon copy, covers betwen 40 and 50 pages.

Section 1479, R. S. 1919, provided that appellant should "within the time and manner as is now or may hereafter be prescribed by the rules of such appellate court, file printed abstracts of the entire record of said cause in the office of the clerk of such appellate court, and within such time, deliver a copy of said printed abstract to the respondent. * * *" (Italics ours.)

Rule 12 of this court provides that:

"Where a complete transcript is brought to this court in the first instance, the appellant shall deliver to the respondent a copy of his abstract of the record at least thirty days before the day on which the cause is set for hearing, and file ten copies thereof with our clerk not later than the day preceding the one on which the cause is set for hearing. * * *" (Italics ours.)

Rule 13 of this court reads as follows:

"The abstracts mentioned in Rules 11 and 12 shall be printed in fair type, be paged and have a complete index at the end thereof, which index shall specifically identify exhibits where there are more than one, and said abstracts shall set forth so much of the record as is necessary to a complete understanding of all the questions presented for decision. * * *" (Italics ours.)

Rule 16 provides that:

"If any appellant in any civil case fail to comply with the rules numbered 11, 12, 13, and 15, the court, when the cause is called for hearing, will dismiss the appeal or writ of error. * * *"

The appellant has signally failed to comply with the foregoing statute and rules of this court. He has printed no abstract of record as above required, and in his brief has simply set out the amended petition, with garbled extracts from the bill of exceptions, in argumentative form. It was the duty of appellant to print an abstract of record showing the filing of the petition, the return of respondents, the judgment rendered, the filing of the motion for a new trial, the overruling of same, the steps taken to perfect the appeal, and to set out in said printed abstract of the record, the evidence as incorporated in the transcript, either as written, or in legal effect.

Numerous cases can be found in our reports, where appeals have been dismissed or the judgments below affirmed, for failure of the appellant to set out in a printed abstract of the record one or more of the material requirements made by the statute and our rules of procedure, but, in this case, both the statute and our rules have been completely ignored, and no effort has been made to file herein any kind of a printed and indexed abstract of the record. It therefore becomes our plain duty to either affirm the judgment or dismiss the appeal. City of St. Louis v. Chartrand (Mo. Sup.) 254 S. W. 866; Perringer v. Raub, 300 Mo. loc. cit 537, 538, 254 S. W. 703; St. Louis v. Vaughn, 273 Mo. 582, 583, 201 S. W. 524; Bank v. Kropp, 266 Mo. loc. cit. 220, 181 S. W. 86, and cases cited; Case v. Carland, 264 Mo. 463, 175 S. W. 290; St. Louis v. Young, 248 Mo. 346, 154 S. W. 87; Milling Co. v. St. Louis, 222 Mo. 306, 121 S. W. 112; Coleman v. Roberts, 214 Mo. 634, 114 S. W. 39; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542; Stark et al. v. Zehnder, 204 Mo. 442, 102 S. W. 992; Clay v. Publishing Co., 200 Mo. 665, 98 S. W. 575; Whiting v. Lead Co., 195 Mo. 509, 92 S. W. 883; Nolan v. Johns, 126 Mo. loc. cit. 167, 28 S. W. 492.

A single quotation is sufficient to show the trend of the foregoing authorities, as well as many others in the appellate courts of the state, in respect to the matter under consideration. In Whiting v. Lead Co., 195 Mo. loc. cit. 510, 92 S. W. 884, Judge Brace, in clear and forceful language, in dealing with this subject, said:

"The appeal in this case is brought here on a complete transcript, but the appellant has failed to file an abstract thereof as required by statute (R. S. 1899, § 813), and rules 12 and 13 of this court. The only paper filed herein by the appellant is indorsed, `Statement, Brief and Argument of Appellant.' It does not purport to and does not contain an abstract of the record upon which the same ought to be based as required by the statute and rules aforesaid. It is a mistake to suppose that filing a complete transcript of the record in this court dispenses with the necessity of filing an abstract thereof. McLaughlin v. Fischer, 188 Mo. 546; Whitehead v. Railroad, 176 Mo. 475; Clements v. Turner, 162 Mo. 466. The mere opinion of counsel as to what the record is, expressed in the statement of appellant's case,...