Walker v. Thompson

Decision Date12 September 1960
Docket NumberNo. 1,No. 47592,47592,1
Citation338 S.W.2d 114
PartiesWilliam WALKER and Paris Walker, Respondents, v. Josephine THOMPSON, Appellant
CourtMissouri Supreme Court

William F. Brown, Sedalia, for appellant.

Rasse & Rasse, Marshall, for respondents. Edward R. Scott, Marshall, of counsel.

DALTON, Judge.

Action in equity by certain heirs at law of Mrs. Annie Reynolds, deceased, to vacate and set aside, on the ground of mental incapacity of the grantor, a deed executed by Mrs. Reynolds to defendant Josephine Thompson a few days before her death. The trial court found the issues for plaintiffs and set the deed aside. Defendant has appealed.

The real estate described is located in Saline County and title to real estate is directly involved, hence this Court has jurisdiction of the appeal. Constitution of Missouri 1945, Art. V, Sec. 3, V.A.M.S.

Mrs. Reynolds and her husband owned the property in question as tenants by the entirety. Her husband died on December 26, 1957. The deed in question was executed by Mrs. Reynolds two days later, on December 28, 1957. It was recorded January 4, 1958, and Mrs. Reynolds, who was probably in her late eighties, died on January 6, 1958. This action was instituted February 6, 1958, and the decree for plaintiffs was entered February 18, 1959.

Before proceeding further it is necessary to consider respondents' motion to dismiss this appeal for flagrant violation of the rules of this Court in the preparation of appellant's brief and on other grounds. The motion was filed prior to the argument and submission of the cause, but the Court ordered the motion taken with the case and appellant and respondents were permitted to argue the appeal before the Court.

The motion to dismiss the appeal first pointed out that appellant's notice of appeal filed in this Court recites that: 'Josephine Thompson, one of the above named defendants, hereby appeals to the Supreme Court of Missouri from the judgment and order overruling and denying the defendant, Josephine Thompson's motion for a new trial entered on the 20th day of April, 1959.' No appeal lies from an order overruling a motion for a new trial, but the aggrieved party may appeal from a final judgment entered against him. Secs. 512.-010 and 512.020 RSMo 1949, V.A.M.S. The right of appeal is purely statutory and where the statutes do not give such a right, no right of appeal exists. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566, 571; Madison v. Sheets, Mo.Sup., 236 S.W.2d 286, 287. Only by a most liberal construction of the statute has it been held that such a notice of appeal is sufficient to vest an appellate court with jurisdiction. See Weller v. Hayes Truck Lines, 355 Mo. 695, 197 S.W.2d 657, 659(3); Bringer v. Barr, Mo.App., 318 S.W.2d 524, 525. 'It is the spirit of the new code to sustain an appeal which is actually an attempt in good faith to appeal from a final judgment even though some other unappealable order is inadvertently designated therein.' Woods v. Cantrell, 356 Mo. 194, 201 S.W.2d 311, 315. The appeal will not be dismissed for any inadequacy of the notice of appeal.

Respondents further say that the brief of appellant contains no proper 'Statement of Facts'; and that the 'Points Relied On' are wholly insufficient to comply with the rules of this Court. With this we agree.

Supreme Court Rule 1.08(a)(3), in effect when appellant's brief was filed in this Court on March 21, 1960, provides that the brief for appellant shall contain 'the points relied on, which shall specify the allegations of error, with citation of authorities thereunder.' Subdivision (d) of Rule 1.08 provides that: 'The points relied on shall briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed. Setting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.' Also see Supreme Court Rule 83.05, effective April 1, 1960, V.A.M.R.

The only allegation of error set out under 'Points Relied On' is in Point II of appellant's brief, as follows: 'The finding and judgment was for the wrong party under the law and evidence.' No reasons are assigned. Appellant has not stated why it is contended the court was wrong in the action or ruling sought to be reviewed. Assignments of error which do not undertake to point out wherein the error lies present nothing for review. Berghorn v. Reorganized School Dist. No. 8, Franklin County, 364 Mo. 121, 260 S.W.2d 573, 580. And see Repple v. East Texas Motor Freight Lines, Mo.Sup., 289 S.W.2d 109, 111.

In eight numbered points under 'Points Relied On' the appellant has stated abstract statements of well-established principles of law with citation of cases, but without stating how or why they apply in this case. A typical statement is, as follows: 'The mental incapacity must be operative at the time of the execution of the instrument.' These abstract statements of law are set out in the brief, regardless of the fact that Rule 1.08(d) expressly states that such is not a compliance with the rule. Such abstract statements of law 'do not state the actions or rulings of the court claimed to be erroneous and why the court was wrong in any action taken.' Turner v. Calvert, Mo.Sup., 315 S.W.2d 118, 120(2, 3).

As stated, there is an assignment under 'Points Relied On' that the finding and judgment was for the wrong party, but without the assignment of any grounds or reasons therefor. Upon reading the printed argument, we discover for the first time that appellant contends that 'the plaintiffs failed in the entirety to sustain the burden of proof'; and that 'there is a total failure of credible evidence to justify the trial court in finding that Annie Reynolds, deceased, was mentally incompetent to execute the deed.'

Assuming, however, that these contentions are sufficient to present the issue, we must determine the sufficiency of appellant's statement of facts. Supreme Court Rule 1.08(a)(2) provides that the brief of appellant shall contain 'a fair and concise statement of the facts without argument.' Subdivision (b) provides: 'The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination. Irrelevant facts and testimony and mere formal matters should not be included in the statement. If desired, such statement may be followed by a statement of testimony of each witness relevant to the points presented.' (Italics ours.)

The so-called 'Statement...

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