Werth v. Frye

• Decision Date: 02 June 1914
• Docket Number: No. 16732.,16732.
• Citation: 258 Mo. 578,167 S.W. 972
• Parties: WERTH et al. v. FRYE et al.
• Court: Missouri Supreme Court

167 S.W. 972

258 Mo. 578

WERTH et al. v. FRYE et al.

No. 16732.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. APPEAL AND ERROR (§ 581)—ABSTRACT OF RECORD—LOST PETITION.

That the petition in an action is lost is no excuse for not abstracting it, under the rules of the Supreme Court requiring appellant to abstract the record proper and the bill of exceptions; but he should apply to the court for leave to file a substitute, and then abstract it.

2. APPEAL AND ERROR (§ 592) — RECORD— FAILURE TO ABSTRACT—EFFECT.

The appeal will be dismissed for failure to abstract the petition in the case, in accordance with the rules of the Supreme Court requiring appellant to abstract the record proper and the bill of exceptions.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Minnie A. Werth and others against William F. Frye and others. Judgment for plaintiffs, and defendants appeal. Dismissed.

H. Chouteau Dyer, of St. Louis, for appellants.

WOODSON, P. J.

This cause was submitted to this court upon what purports to be the abstract of the record and brief of appellants, and taken as submitted by respondents; they filing neither. The second paragraph of the statement of the abstract of the record reads as follows:

"The original files in this case seem to have been lost, and, never having been served with a copy of the petition, this appellant, Henry B. Seaman, is unable to set out in this abstract a verbatim copy of the petition, but, no point having been made on the pleadings, it will be sufficient for the determination of this case to state that the petition was in the usual form, alleging, in substance, that the plaintiffs are the owners in fee simple and claim title to the following described real estate situated in Shannon county, state of Missouri, to wit:"

Then follows the description, the conventional allegations under old section 650, and the usual prayer.

The rules of this court require that the appellant make a true abstract of the record proper and of the bill of exceptions filed in the case. This so-called abstract of the record is a most flagrant violation of those rules. The petition, which is the foundation of all litigation, both law and equity, in this case has not been abstracted; but confessedly it is lost or destroyed, which I take as the reason why counsel has not abstracted it; but that is no valid excuse why it should not have been abstracted. If counsel desired this court to review the ruling...