Wallace v. Libby

• Decision Date: 30 November 1910
• Parties: WALLACE et al. v. LIBBY.
• Court: Missouri Supreme Court

132 S.W. 665

231 Mo. 341

WALLACE et al. v. LIBBY.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

1. APPEAL AND ERROR (§ 586)—RECORD—SUFFICIENCY OF ABSTRACT.

The abstract of the record proper must show the filing and overruling of the motion for a new trial, and its failure to do so is not cured by a recital of matters of record proper in the bill of exceptions.

2. APPEAL AND ERROR (§ 511) — RECORD — FAILURE TO SHOW FILING OF BILL OF EXCEPTIONS.

Failure of the record proper to show that the bill of exceptions was ever filed is fatal to a hearing in the Supreme Court, and such omission is not supplied by a recital of the filing in the bill of exceptions itself.

3. APPEAL AND ERROR (§ 586) — REVIEW — SUFFICIENCY OF ABSTRACT.

Failure of the printed abstract to distinguish matters of record proper and matters of exception is fatal to a hearing in the Supreme Court.

4. APPEAL AND ERROR (§ 756) — BRIEFS — FORM.

Much latitude must be permitted under Supreme Court rule 15 (73 S. W. vi), requiring appellant's brief to be printed separate from the argument or discussion of the authorities and to contain a statement in numerical order of the points relied upon, with a citation of authority, and distinctly and separately to allege the errors committed by the trial court, and if there is a substantial compliance with the rule it is sufficient.

5. APPEAL AND ERROR (§ 586)—RECORD—SUFFICIENCY OF ABSTRACT.

Failure of the printed abstract of the record to show that the record proper recites the rendition of the judgment, and to designate any matter as appearing by the record proper, is fatal to the appeal.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by W. I. Wallace and others against E. L. Libby. Judgment for plaintiffs, and defendant appeals. Dismissed.

This is an equitable proceeding, begun in the Laclede circuit court November 29, 1905, for the purpose of removing a cloud from the title of certain real estate, situate in said county, and especially described in the petition, and which plaintiffs claimed to own, and to enjoin the sale of same by Sam Farrar, trustee, under a deed of trust executed by Charles F. Clough and Walter Clough, in which the defendant, E. L. Libby, was named as the beneficiary; also for the purpose of quieting the title to said real estate. A temporary injunction was granted by the trial court, and upon the final hearing was made perpetual. The relief prayed for in the petition was granted and the title quieted. From that judgment and decree, the defendant duly appealed to this court.

Jno. W. Farris, for appellant. W. I. Wallace, for respondents.

WOODSON, J. (after stating the facts as above).

At the threshold of this case we are confronted with a motion, timely filed in this court, asking that the appeal be dismissed, or that the judgment be affirmed, for the reason that appellant has failed to comply with the rules governing the practice in this court in the following particulars, to wit:

"1. Because the printed abstract of the record proper fails to show that a motion for a new trial was filed and overruled by the trial court.

"2. Because the printed abstract of the record proper fails to show that a bill of exceptions was filed.

"3. Because the printed abstract fails to show where the abstract of the record proper ends, and the bill of exceptions begins.

"4. Because appellant's brief herein is not printed separate and apart from the argument or discussion of the authorities, and does not contain a statement, in numerical order, of the points relied on, together with a citation of authorities under each point, as required by rule 15 (73 S. W. vi). Further, because appellant's brief does not distinctly and separately allege the errors committed by the trial court, as required by rule 15 (73 S. W. vi).

"5. Because the abstract of the record proper fails to show that a judgment was rendered by the trial court."

Addressing ourselves to the first grounds of the motion, it is sufficient to state that the printed record wholly fails to designate what is record proper and what is matter of exception. In fact, it fails to state that anything printed in the abstract is contained either in the record proper or in the bill of exceptions, but leaves this court to conjecture whether or not the matters so printed are contained in either, and if in either, then which.

In a long line of cases this court has repeatedly held that the abstract of the record proper must show the...