The State ex rel. Wallace State Bank v. Trimble

• Decision Date: 13 April 1925
• Docket Number: 25343
• Citation: 272 S.W. 72,308 Mo. 278
• Parties: THE STATE ex rel. WALLACE STATE BANK v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

272 S.W. 72

308 Mo. 278

THE STATE ex rel. WALLACE STATE BANK
v.
FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25343

Supreme Court of Missouri

April 13, 1925

Peremptory writ awarded.

Wm. D. Bush and R. V. Nelson for relator.

(1) The Court of Appeals dismissed the appeal upon the claim that appellant's abstract of record does not show where or by whom the petition was filed. The amended petition is set out in full in the abstract, and shows the parties, plaintiff and defendant. The aforesaid provisions of said abstract clearly show that the whole connected and naturally related record entries set out in the abstract, are the record entries and abstract of the record of the Circuit Court of Jackson County, Missouri, in the case between the parties shown in the caption, named in the petition, mentioned in the pleadings and motions, shown in the evidence on page 8 of the abstract, set out in the caption of the bill of exceptions, shown by the certified copy of the judgment and order granting appeal which must be read as a part of the abstract. (2) Even if the Court of Appeals was correct in its finding that the facts alleged are omitted from appellant's abstract, the court was not justified in dismissing the appeal. (a) In the first place, it makes no difference where the petition was filed. The abstract shows that the cause was tried in the Circuit Court of Jackson County, upon the pleadings set forth in full in appellant's abstract. A court of general jurisdiction trying a cause is presumed to have had jurisdiction of the case. State ex rel. Western Valve Co. v. John Gill & Sons Co., 220 S.W. 978; St. Charles Savings Bank v. Thompson, 210 S.W. 868; Schad v. Sharp, 95 Mo. 573. (b) But even if the facts were omitted, and even if such defect were the omission of a fact necessary to be shown, the Court of Appeals is not authorized to dismiss the appeal for such a super-technical defect. Gray v. Gurley, 252 Mo. 410; Wimpey v. Ledford, 177 S.W. 302. Unless the abstract is so defective as to amount to a total failure to file an abstract, the court has no jurisdiction to dismiss the appeal. State ex rel. Ry. Co. v. Smith, 172 Mo. 446; State ex rel. Light & Power Co. v. Trimble, 237 S.W. 1021. (c) If the facts were omitted from the abstract, they are supplied and the omission waived by the statement in respondent's brief. Scott v. Parkview Realty & Imp. Co., 241 Mo. 112. (d) The transcript of the judgment entry and order allowing the appeal filed in the Court of Appeals shows the style of the case and the court from which it was appealed, and thereby supplies the defects if they should exist, as said transcript must be read as a part of the abstract. State ex rel. v. Broaddus, 239 Mo. 359. (e) The caption is a part of the abstract by statue which provides that the style of the case in the appeal court shall be the same as in the trial court with the exception of the substitution of appellant or respondent as the case may be for plaintiff and defendant, and of this the court must take judicial notice. Sec. 1470, R. S. 1919; State ex rel. v. Broaddus, 239 Mo. 359. (f) The dismissal of appellant's appeal for the alleged error of the abstract is in direct conflict with Sec. 1276, R. S. 1919.

Hunt C. Moore and Ilus M. Lee for respondents.

The Court of Appeals properly dismissed the appeal. Sec. 1479, R. S. 1919; Rule 15 of Kansas City Court of Appeals; Barnes v. Barnes, 149 Mo.App. 546; McGuire v. Brokaw, 226 S.W. 581; Harding v. Bedoll, 202 Mo. 625; Cunningham v. School District, 215 S.W. 249.

White, J. Woodson, David E. Blair, Ragland and Atwood, JJ., concur; Graves, C. J., concurs in a separate opinion; Walker, J., concurs in all except Paragraph III.

OPINION

WHITE

[308 Mo. 281] This is a proceeding wherein the relators seeks by mandamus to compel the judges of the Kansas City Court of Appeals to set aside an order dismissing the case of Wallace State Bank...