Werminghaus v. Eberle

• Decision Date: 17 April 1935
• Docket Number: 32987
• Citation: 81 S.W.2d 607
• Parties: WERMINGHAUS v. EBERLE
• Court: Missouri Supreme Court

81 S.W.2d 607

WERMINGHAUS v. EBERLE

No. 32987

Supreme Court of Missouri, First Division

April 17, 1935

Felix Cornitius and Albert E. Hausman, both of St. Louis, for appellant.

Russell J. Horsefield and Richard Molloy, both of St. Louis, for respondent.

OPINION

HYDE Commissioner.

This is an action for personal injuries, resulting from the collision of automobiles driven by plaintiff and defendant. Plaintiff's cause of action was based upon charges of negligent speed, driving on the wrong side of the road, and violation of the humanitarian doctrine. Defendant's answer alleged as contributory negligence that plaintiff was driving on the wrong side of the road and violated the humanitarian doctrine. It is conceded that each party had evidence tending to sustain his allegations of negligence charged against the other party, in the pleadings. There was a jury trial, which resulted in a verdict for defendant. The trial court sustained plaintiff's motion for a new trial on the ground that the court gave erroneous instructions at the request of defendant. Defendant has appealed from this order granting plaintiff a new trial.

The first question before this court in any case, whether it is raised or not by the parties, is the determination of its jurisdiction. Upon examination of the abstract submitted by defendant as appellant herein, we find that it does not contain enough of the record proper to comply with rule 13 of this court, because the pleadings are not set out, and the amount sued for nowhere appears from the abstract. This information is not even given by the briefs. We cannot either pass upon the merits or transfer the case, because there is no way we can tell from the abstract, or from anything filed here, whether this court has jurisdiction of this appeal, and it is likewise impossible to find out whether it is within the jurisdiction of the Court of Appeals. If we transferred it there, it might then develop that the jurisdiction was here. We must, therefore, dismiss the appeal for failure to file a sufficient abstract.

We note, however, that whether the appeal be thus dismissed or whether the appeal be considered on the merits, in either event the result would be a new trial for plaintiff, because one of the instructions, on account of which the trial court granted a new trial, has been recently condemned as reversible error by this court. Therefore, if it did appear that we had jurisdiction, we...