40 Mo. App. 421 | Mo. Ct. App. | 1890
It would seem hardly necessary so often to remind lawyers and litigants of the existence of rule 15 of this court requiring £< the appellant or plaintiff in error to file here, on or before the day next preceding the day on which the cause is docketed for hearing, copies of a printed abstract or abridgment of the record in said cause, setting forth' so much thereof as is necessary to a full understanding of all the questions presented to this court for decision.” Nor is it necessary to repeat, as so often declared, that we will not look beyond the abstract for information upon which to determine the question raised. Foster v. Trimble, 18 Mo. App. 394; Goodson v. Railroad, 23 Mo. App. 76; City of Kansas v. O’ Connor, 36 Mo. App. 594.
The appellant or plaintiff in error, too, must set out the portion of the record relied on in his first, or original, abstract. He cannot fail or refuse to furnish such abridgment or abstract in the first instance, and then after respondent shall suggest in his brief such failure cure the defect by a so-called supplemental abstract. Cuomo v. The City of St. Joseph, 24 Mo. App. 567.
The plaintiff in error here has furnished nothing by his so-called abstract except a mere statement of the case with a very general statement as to the contents of the petition. To this the defendants in error have added a more definite synopsis of the pleadings; which then presents us for decision nothing but a determination of the one point raised, to-wit, as to the sufficiency of plaintiff’s petition. .
The material averments of the petition in this case are, in substance, that Humes Bros, were the owners of a mill and tract of land upon which the same was situated in Morgan county, Missouri; that they sold said
It is quite clear, that, admitting the truth of the foregoing allegations, plaintiffs should have equitable relief to prevent and remove a cloud from their title to the real estate in question. It would seem that defendant had of record an apparent right to sell this land and make a title thereto superior to that already acquired by the plaintiffs, but in the light of the facts outside the record, and which rest in parol, and can only be shown by extrinsic testimony, the defendant has no such right. In such cases there is no doubt as to the right to invoke equitable relief. Drake v. Jones, 27 Mo. 432; Harrington v. Utterback, 57 Mo. 519; Mason v. Black, 87 Mo. 344-5.
Let the judgment of the circuit court be affirmed.