White v. Kuhnert

• Decision Date: 12 January 1948
• Docket Number: No. 20943.,No. 20941.,No. 20942.,20941.,20942.,20943.
• Citation: 207 S.W.2d 839
• Parties: WHITE v. KUHNERT.
• Court: Missouri Court of Appeals

207 S.W.2d 839

WHITE v. KUHNERT.

No. 20941.

No. 20942.

No. 20943.

Kansas City Court of Appeals. Missouri.

January 12, 1948.

Appeal from Circuit Court, Buchanan County; Emmett J. Crouse, Judge.

"Not to be published in State Reports."

Suit by Lee E. White against J. P. Kuhnert and Louis Kranitz for the reasonable value of accounting services rendered. From order and judgment in favor of second-named defendant, plaintiff appeals, and from order and judgment granting plaintiff a new trial as to second-named defendant and from judgment in favor of second-named defendant, first-named defendant appeals.

Plaintiff's appeal dismissed and first-named defendant's appeal from the judgment in favor of second-named defendant dismissed and order granting plaintiff a new trial as against first-named defendant affirmed.

Lewis F. Randolph, of St. Joseph, for appellants.

Alva F. Lindsay, of St. Joseph, for respondent.

SPERRY, Commissioner.

Plaintiff, Lee E. White sued J. P. Kuhnert, his wife and Louis Kranitz, defendants, for the reasonable value of services rendered as an accountant. Trial was to a jury. The court directed a verdict in favor of Mrs. Kuhnert and this appeal does not involve her. After all of the evidence was in, each of the remaining defendants moved for a directed verdict, which motions were overruled. The jury rendered a verdict for plaintiff and against Kranitz in the amount of $200, and found for Kuhnert and against plaintiff. Judgment in accordance therewith was duly entered. Kranitz moved for a new trial and for judgment notwithstanding the verdict, which motions were by the court sustained. Plaintiff moved for a new trial as against Kuhnert and the motion was sustained on grounds that "the verdict is against the weight of the evidence."

Plaintiff filed notice of appeal from the order and judgment in favor of Kranitz, which appeal is lodged in this court under docket No. 20943. Kuhnert appealed from the order and judgment against him, granting plaintiff a new trial. That appeal bears our docket No. 20941.

Defendants, Kuhnert and Kranitz, filed separate answers to plaintiff's petition, in the nature of general denials. Neither sought any affirmative relief against the other. The transcript lodged here was supplied by both White and Kuhnert, but no order was ever made whereby the two appeals were consolidated. However, these appeals appear on our docket for hearing as though they constitute but one case. Kranitz has filed a respondent's brief wherein he points out that plaintiff has filed no brief. Kuhnert filed notice of appeal Kfrom the order and judgment granting plaintiff a new trial as to him, and from the judgment in favor of Kranitz. Because of this rather unusual situation we will dispose of both appeals in one opinion.

Plaintiff White, appellant in case No. 20943, has filed no brief. We will not review errors which are not pointed out to us in a brief filed by appellant. Appellate Court Rules 1.08; 1.30; Section 139, page 394, Laws Missouri, 1943, Mo.R.S.A. § 847.139; Sharp v. Quincy, O. & K. C. Railroad, Co. 139 Mo.App. 525, loc. cit. 534, 123 S.W. 507; Johnson v. Fogertey Building Company, Mo.App., 194 S.W.2d, 924, loc. cit. 930, Having heretofore dismissed many appeals, in other cases, because of the failure of appellants therein to comply with our rules in regard to matter contained in the briefs filed, we can do no less than dismiss an appeal where no brief has been filed, by appellant. Disse v. Frank, 52 Mo. 551.

Kuhnert's appeal is from the order setting aside the judgment in his favor as against plaintiff and granting plaintiff a new trial as to Kuhnert; and is also from the order setting aside the judgment in favor of plaintiff and against Kranitz, and from the judgment entered in favor of Kranitz notwithstanding the verdict.

Kuhnert and Kranitz were co-defendants below, but neither filed any pleading as against the other. They each filed separate answers. Kuhnert pleaded a simple general denial and Kranitz pleaded a general denial and, in addition, affirmatively pleaded the provisions of Section 3354, R.S.Mo.1939, Mo.R.S.A., the statute of frauds. There is no allegation in Kuhnert's pleadings tending to show that he might be entitled to any right of subrogation as against Kranitz, in the event that plaintiff should recover as against Kuhnert. In this state of the record, the parties were merely co-defendants. They were that and nothing more. Neither is entitled to take the other to this court, on appeal from a judgment affecting either of them. Kuhnert is not an interested party, in the matter of the judgment obtained by plaintiff as against Kranitz, based on the verdict, the order setting aside said judgment, or in the judgment in favor of Kranitz and against plaintiff notwithstanding the verdict. Kuhnert is not aggrieved thereby. As to Kuhnert, the question is whether he is liable to plaintiff; and the answer to that question, under the state of the pleadings in this case, does not depend in any manner upon Kranitz's liability or non-liability to plaintiff. Kuhnert was not aggrieved by the judgment in favor of Kranitz and against plaintiff, and his appeal therefrom is dismissed. Love v. White, 348 Mo. 640, 154 S.W.2d 759; State ex rel, Wilkerson v. Skinker, 344 Mo. 359, loc. cit. 371, 126 S.W.2d 1156, 122 A.L.R. 532.

This brings us to a consideration of Kuhnert's appeal from the action of the court in setting aside his...