Woods v. Dowd

• Decision Date: 21 February 1940
• Docket Number: No. 35805.,35805.
• Parties: WEIGHTSTILL WOODS, Plaintiff in Error, v. FRANK DOWD and M.N. SHERMAN, Defendants in Error.
• Court: Missouri Supreme Court

137 S.W.2d 426 WEIGHTSTILL WOODS, Plaintiff in Error,
v.
FRANK DOWD and M.N. SHERMAN, Defendants in Error. No. 35805. Supreme Court of Missouri. Division Two, February 21, 1940.

Appeal from Camden Circuit Court. — Hon. C.H. Skinker, Judge.

WRIT OF ERROR DISMISSED.

Richard H. Woods for plaintiff in error.

The Missouri decisions sustain ejectment as the only adequate remedy, for breach of conditions in a deed which limit the use of property, and reversion of title to the grantor. Ellis v. Kyger, 90 Mo. 606; O'Brien v. Wagner, 94 Mo. 93; Clark v. Brookfield, 81 Mo. 503; Ruddick v. Railroad, 116 Mo. 25; Brooks v. Gaffin, 192 Mo. 228, 196 Mo. 35.

Roy D. Williams and Luther Adamson for defendants in error.

(1) It is incumbent upon the one seeking a reversal to bring up the evidence. Craven v. Midland Milling Co., 228 S.W. 513; Calkins v. Engle, 300 S.W. 998; Smith v. Wilson, 296 S.W. 1036; Brand v. Cannon, 118 Mo. 595; Smith v. Baer, 166 Mo. 404; Vandeventer v. Gross, 190 Mo. 242; Halstead v. Stone, 147 Mo. 649; Dixon v. Thomas, 91 Mo. App. 364. (2) Appellant makes no formal assignment of error in his brief — merely states abstract propositions of law. This necessitates a dismissal. Duffy v. Allen, 220 S.W. 857; Hunt v. Hunt, 307 Mo. 317. (3) The abstract of the plaintiff in error does not show the filing of a petition and hence a dismissal is required. McGuire v. Brokaw, 226 S.W. 581.

COOLEY, C.

This case is here on writ of error. For convenience and brevity we shall refer to plaintiff in error as plaintiff and to defendants in error as defendants, as they were respectively styled in the circuit court.

On October 22, 1936, this court issued its writ, directed to the judge of the Eighteenth Judicial Circuit, commanding him to certify to this court a "perfect transcript of the record and proceedings" in a cause "lately pending" in the Circuit Court of Camden County wherein Weightstill Woods was plaintiff and Frank Dowd and M.N. Sherman were defendants, or in lieu of such transcript "a certified copy of the record entry of the judgment, order or decree, showing the term and day of the term, month and year upon which the same shall have been rendered, as the plaintiff in error shall direct ..." In response to that writ the clerk of said Camden County Circuit Court certified to this court what purports to be a "transcript of the record" in said cause. It does not contain any of the evidence nor the bill of exceptions, if one was filed. It shows a record entry giving plaintiff leave to file a bill of exceptions "by first of next regular term" and an extension of said time, but does not show that such bill was ever allowed or filed.

Said transcript shows the filing of the pleadings and sets them out. There follows

137 S.W.2d 427

matter (exhibits) that could be preserved only by a bill of exceptions duly signed, allowed and filed, but no oral evidence; also record entries indicating that the trial was begun to a jury and that, when the evidence was in, the jury was excused by agreement of parties and the cause was taken as submitted to the court on the evidence which had been introduced. The record entry is "Jury waived and by agreement evidence to be considered as offered at this time." As well as we can gather from the transcript the court took the case under advisement and rendered judgment at the next term. The only record entry of judgment we find, made at the October Term, 1935 (the term subsequent to the trial term) — is this: "On this 24th day of October, 1935, again came the parties hereto and their attorneys and the court found `Judgment for the defendants.'" The judgment is not set out, except as above quoted. There follow in the transcript copies of motion for new trial and in arrest of judgment, and record entries showing same overruled, and, as above stated, orders granting leave to file bill of exceptions and extension of such time, but no record showing the allowance or filing of such bill. Such is the "transcript."

Turning now to plaintiff's abstract of the record:

It does not show when or in what court the suit was filed. After styling the case it begins "Petition — Count One." Then follows the petition, a lengthy document, in two counts. Following that we find "Separate Answer of M.N. Sherman ..." which is set out. Following that, "Plaintiff's reply." As set out in the abstract said "reply" is but one paragraph of a lengthy reply to defendant Dowd's separate answer (as shown by the transcript), though in the abstract it purports to be the whole — and the only — reply filed. We find no reply, or reference thereto, in either transcript or abstract, to defendant's Sherman's...