Whitehead v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 30 June 1903
• Citation: 75 S.W. 919,176 Mo. 475
• Parties: WHITEHEAD v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Supreme Court

75 S.W. 919

176 Mo. 475

WHITEHEAD v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 30, 1903.

APPEAL — ABSTRACT — DISMISSAL.

1. Supreme Court Rule 12 (73 S. W. vi) provides that, in all cases where a complete transcript is brought to that court in the first instance, appellant shall deliver to respondent a copy of his abstract of the record, and file 10 copies thereof with the clerk of the court. Rule 13 (73 S. W. vi) requires that the abstract be printed, and that it set out so much of the record as is necessary to a full understanding of the questions presented. Held, that where no abstract has been filed on an appeal where a verdict was directed for defendant, and the statement mentions the evidence of only 3 out of 14 witnesses, the appeal must be dismissed.

Appeal from Circuit Court, Butler County, J. L. Fort, Judge.

Action by King Whitehead against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for defendant, and plaintiff appeals. Dismissed.

Murray & Renfro, for appellant. Martin L. Clardy and Louis F. Dinning, for respondent.

GANTT, J.

This is an appeal from the Butler circuit court. When the cause was reached on the docket, counsel for respondent insisted that the appeal should be dismissed for failure to comply with the rules of this court, particularly rules 12 and 13. (73 S. W. vi). It is obvious that counsel for appellant have failed to comply with either the spirit or the letter of those rules. They were designed to aid this court in grasping a full and complete understanding of the questions presented in the circuit court, and it is therefore provided in rule 12 that, "in all cases where a complete transcript is brought to this court in the first instance, the appellant shall deliver to respondent a copy of his abstract of the record at least thirty days before the day on which the cause is set for hearing and file ten copies thereof with the clerk of this court not later than the day preceding the one on which the cause is set for hearing." In Johnson v. Carrington, 120 Mo. 315, 25 S. W. 200, this court ruled that a statement by the plaintiff in error, merely giving an abstract of the evidence offered at the trial, is not a compliance with rules 12 and 13, and the writ will be dismissed on motion of the respondent. In this case it does not even appear, except by the designation of plaintiff, that this case was brought here by appeal. There is no effort to abstract the evidence at all, and that only of three witnesses is mentioned, whereas eleven other witnesses testified. The pertinency of this observation will be seen when we note that plaintiff says the circuit court directed a verdict for the defendant and the jury returned a verdict. Now it is...