Terry v. Ingraham

• Decision Date: 31 December 1928
• Docket Number: No. 16270.,16270.
• Parties: TERRY v. INGRAHAM et al.
• Court: Missouri Court of Appeals

12 S.W.2d 763

TERRY v. INGRAHAM et al.

No. 16270.

Kansas City Court of Appeals. Missouri.

December 31, 1928.

Appeal from Circuit Court, Sullivan County; J. E. Montgomery, Judge.

"Not to be officially published."

Action by Clarence Terry, at the relation of J. E. Moberly, against Frank Ingraham and others. From the judgment, plaintiff appeals. Appeal dismissed.

L. E. Atherton, of Milan, for appellant.

L. A. Warden, of Trenton, for respondents.

FRANK, C.

This is an action to recover damages on an indemnifying bond executed by defendants to Clarence Terry, constable of Bowman township, Sullivan county, Mo.

The record, as presented in this court, precludes us from an examination or determination of this case on the merits.

Appellant makes no statement of the case in this court. The record filed by him contains: (1) The record proper; (2) the bill of exceptions; (3) assignment of errors; (4) brief points and authorities; and (5) argument. Section 1511, R. S. Mo. 1919, provides, among other things, that the appellant shall "make out and furnish the court with a clear and concise statement of the case." Rule 16 of this court provides that, in compliance with the statute, "the statement filed by appellant shall consist of a clear and concise statement of the case without argument, reference to issues of law or repetition of testimony of witnesses." Rule 18 of this court provides that "if any appellant or plaintiff in error, in any civil cause, shall fail to comply with the provisions of * * * that part of rule 16 relating to the statement, the court, when the case is called for hearing, will dismiss the appeal or writ of error, or at the option of the respondent or defendant in error, continue the cause, at the cost of the party in default."

The statute above quoted provides that the appellant shall make out and furnish the court with a statement of the case. Our rule 18 provides that the court will dismiss the appeal where appellant fails to comply with rule 16 relating to a statement of the case.

Both the statute and our rules in this regard are mandatory. It is our duty to enforce the rule as made. Rigdon v. Ferguson, 172 Mo. 49, 72 S. W. 504, 505; State v. Robertson (Mo.) 181 S. W. 987, 988; 11 Cyc. 743. Under the mandatory provisions of the statute and our rules, we have no discretion in the matter. We could not refuse to dismiss the appeal without violating our own rules, and this we decline to do.

It results that the appeal in this case...