Village of Marble Hill v. Caldwell

• Decision Date: 02 July 1915
• Docket Number: No. 13904.,13904.
• Citation: 178 S.W. 226
• Parties: VILLAGE OF MARBLE HILL v. CALDWELL
• Court: Missouri Court of Appeals

178 S.W. 226

VILLAGE OF MARBLE HILL v. CALDWELL

No. 13904.

St. Louis Court of Appeals, Missouri.

July 2, 1915.

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

"Not to be officially published."

Joseph W. Caldwell was convicted of violating an ordinance of the village of Marble Hill, and he appeals. Affirmed.

Caldwell, Morgan & Conrad, of Marble Hill, for appellant. Anthony & Davis, of Fredericktown, for respondent.

NORTONI, J.

Defendant was convicted on a charge of permitting his cow to run at large on the streets of the village of Marble Hill contrary to an ordinance prohibiting animals from running at large therein. From this judgment he prosecutes an appeal here.

It appears Marble Hill is a village incorporated under our statutes touching such matters, and the trial was originally had before the chairman of the board of trustees of such village. Defendant, having been convicted there, appealed to the circuit court, where the case was tried anew before a jury of 12 men, and he was found guilty by the verdict in which all of the jurors concurred, and which also assessed his punishment at a fine of $1.00.

In presenting the appeal for consideration here, defendant has failed to comply with the statute requiring an abstract of the entire record to be filed in the appellate court. The printed abstract on file is insufficient in many respects; indeed in so many as to render it cumbersome to attempt to re= cite its deficiencies. It is sufficient to say that it does not even purport to show an abstract of a record entry showing that a motion for a new trial was filed. It appears that on May 8, 1915, defendant served on respondent a copy of his abstract in the case, and on May 15, 1915—that is, within 10 days thereafter—respondent filed its objections thereto in writing in this court, and likewise served a copy of the same on defendant, pointing out this and a number of other deficiencies therein. Defendant has omitted entirely to heed the objections so made against the sufficiency of the abstract, and the case was submitted on the original defective one. It is therefore urged that the court should decline to consider arguments put forth in the brief of defendant, for the reason that the abstract is wholly insufficient under the provisions of the statute (section 2048, R. S. 1909). There can be no doubt that the abstract is wholly insufficient to present the matters of exception for review here if the appellate procedure in civil cases prevails. See Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638.

Several years ago we adopted our rule 33 (169 S. W. xix) in order to alleviate against the strict rule of decision which obtains in respect of these matters, and provided therein, substantially, that unless objections were made to the sufficiency of the printed abstract within 10 days after its service on the adverse party, the court might, in its discretion, decline to put the case out on account of a mere defective abstract and proceed to consider the appeal on its merits. Under this rule, when objections are made to the sufficiency of the abstract, as was done here within the 10 days prescribed, leave to amend it by correcting the defects according to the facts is usually given. But here no leave has been requested to amend the abstract, and indeed no amendment whatever tendered. In such circumstances the respondent may insist that his objections thereto be considered, and if according to the course of controlling decisions of the Supreme Court the...