Vahldick v. Vahldick

• Decision Date: 30 March 1915
• Docket Number: No. 17093.,17093.
• Citation: 264 Mo. 529,175 S.W. 199
• Parties: VAHLDICK v. VAHLDICK et al. (PATTERSON et al., Interveners).
• Court: Missouri Supreme Court

175 S.W. 199

264 Mo. 529

VAHLDICK v. VAHLDICK et al. (PATTERSON et al., Interveners).

No. 17093.

Supreme Court of Missouri, Division No. 2.

March 30, 1915.

Appeal from Circuit Court, Greene County; T. J. Murray, Judge.

Action by Charley Vahldick against Frederick Vahldick and others, in which J. 0. Patterson and another intervene. From the judgment, the intervening defendants appeal. Appeal dismissed.

Plaintiff brought suit to partition 40 acres of land in Greene county. Interveners below,. who are appellants here, were upon their own motion made parties. Judgment went below for plaintiff pursuant to the prayer of his petition—we assume, since plaintiff and defendants do not appeal—and against interveners who do appeal. The land in dispute was owned in his lifetime by one Andreas Vahldick, who died intestate in Greene county on the 16th day of February, 1907. Said Andreas left surviving him a widow, but no children by him begotten. The widow elected to take one-half of the 40 acres of land, leaving but 20 acres in dispute here. The intervening petition of appellant Herman Vahldick is based upon the claim that about the year 1884 or 1885 said Andreas Vahldick, being childless, entered into an agreement with one Dressell, who was the adopted father of appellant Herman Vahldick, for the benefit and behoof of the latter, by which agreement the said Andreas undertook and promised to adopt said appellant " as the child and heir of him, said Andreas. Mutual fulfillment of the parental duties of care and custody, support and maintenance upon the side of him, the said Andreas, and of the full performance of filial duties upon the side of appellant Herman, are averred, and the prayer is that the court decree specific performance of the contract to adopt, and that thereupon appellant Herman and his coappellant, to whom said Herman conveyed a moiety for, or to better secure a fee, have partition of said land, in lieu of defendants, who as is also plaintiff, are the collateral kin of him said Andreas. Plaintiff Charley Vahldick purchased the half interest of the widow and claims, in addition to that half, a full share of the remaining 20 acres as one of the brothers of the deceased Andreas, the ancestor. After being permitted to become interveners, appellants filed an answer, which in effect and legal substance set out the facts as above and prayed affirmative relief as in their intervening petition already mentioned. In addition, they affirmatively prayed a divestiture of title out of both plaintiff and defendants of one-half of the said land, and a vesting of same in the said interveners. The trial court, as stated above, found for plaintiff and against appellants, dismissing their petition and for costs.

J. O. Patterson and Neville & Gorman, all of Springfield, for appellants. H. D. Durst and John Schmook, both of Springfield, for respondent.

FARIS, P. J. (after stating the facts as above).

Upon the very threshold of the case we are met by a motion to dismiss the appeal for the reason that appellants have failed and neglected to comply with the statute (sections 2080 and 3941, R. S. 1909), and with our rules (Rules 15 and 16 [169 S. W. ix]), in the making of their brief. Specifically the contention is that there is no assignment or pointing out of errors. This motion of respondent was timely filed and upon the hearing and argument was taken with the case, to be ruled by us when we came to write the opinion herein.

Going to the brief of appellants to find whether the objection of respondent be well taken, we find neither an assignment of errors, nor any point made, or set out therein suggesting any specific error. About the place where we should usually expect to find errors assigned, a typewritten sticker advises us that "the court found against the interveners, and this is the only error assigned by appellants." In short, the assignment of errors is, "The court found against interveners," which action of the court appellants assign as error. This, it is obvious, tells us nothing which we had not already surmised. It has been held that where appellant, though making no formal collective assignment of errors in any given part of his brief, yet separately assigns error specifically in distinct subheads of his points and authorities, we will accept this as a substantial compliance with the statute and our rules. Perry v. Strawbridge, 209...