235 Mo. 30 | Mo. | 1911
— Plaintiff sues in ejectment for a small tract of land near the city of Poplar Bluff in Butler county, Missouri. The petition is in the usual form. Damages are charged to be $100, and monthly rents .and profits are fixed by the petition at $5 per month. The answer is the ten-year Statute of Limitations and a general denial. Reply a general denial.
Points are made as to the sufficiency of the abstract. It will suffice at his point to state that there was a trial before the court without the intervention of a jury and a general finding and judgment for the defendant. Prom this judgment the plaintiff has appealed., The points as against the sufficiency of appellant’s abstract we take first.
This question is not strongly urged here by the respondent, but we take it that even if were there would be no substance therein. When the original bill was filed the record of the case was complete. When the supply bill was filed it related back to the filing of the original and stood as and for the original, and this additional abstract in this regard only supplies a matter not in existence at the time the first was printed. Of course, counsel take chances in printing an abstract of record without there being on file a bill o£
The second question is not of 'such easy solution. Respondent, in his brief filed, challenges the sufficiency of the printed abstract in certain particulars, and by the proposed amendments, these suggestions are met. This we have held cannot be done. In the case of Harding v. Bedoll, 202 Mo. l. c. 637, after reviewing our former cases on the subject of supplemental abstracts, we said: “The foregoing seems to be the rule as to supplemental abstracts of record. To say the least they should not be filed without leave of court and'if so filed will not be considered. We will add further that if for any reason the original is so faulty in stating material facts of record as to authorize the sustaining of suggestion to dismiss the appeal or writ of error, no leave should be granted after the opposite party has served his brief or other writing calling attention to the defects. To hold otherwise, would, as Judge Gantt practically says, place a premium upon negligence in the preparation of abstracts.”
The amendments offered in this case were tendered to meet the objections in a brief filed by respondent. Upon this question we think the Bedoll case properly states the rule. There is then left for consideration the fact as to whether or not the abstract of record unamended is sufficient, for under the authority of the Bedoll and subsequent as well as prior cases, a supplementary abstract should not be permitted after challenge has been made, where the original is so defective as to authorize the sustaining of a suggestion to dismiss the appeal. We will therefore consider the record as to the supplied bill of exceptions, and then determine the sufficiency of the abstract of record without the proposed amendment.
That the original abstract of record was exceedingly loosely prepared admits of no doubt. In view of all that has been written upon the subject of abstracts of record it is inconceivable how so many questionable abstracts reach -this court.
In Harding v. Bedoll, supra, we undertook to outline in general terms what should be shown by the abstract of record. Upon some questions this opinion must be read in the light of what had been previously said upon the questions involved.
(a). In the case at bar it is urged that the abstract of record fails to recite that the case had been docketed in this court. In other words that it failed to state that a short transcript of the judgment and order granting the appeal had been filed in this court. This question was decided adversely to the position of respondent prior to the Bedoll case in State ex rel. v. Smith, 172 Mo. l. c. 458, and has been since so decided against him. [Coleman v. Roberts, 214 Mo. 634; Bank v. Hutton, 224 Mo. l. c. 51; Godfrey v. Godfrey, 228 Mo. l. c. 512; Booth v. Railroad, 217 Mo. l. c. 715; Hanks v. Hanks, 218 Mo. l. c. 676.] In the Booth case, supra, we said: “It is true the letter of the statute applies as well to a short as it does to a long transcript, yet its reason and spirit must be looked to in its application. We have held in two recent cases that when the cause is here in the short form, that is,
The more recent cases cited above follow this trend. This question must therefore be ruled against the respondent.
(b) It is also urged that the abstract fails to show an affidavit for appeal was filed and an appeal granted either during the term of the judgment or the term at which the motion was overruled. Upon this point the abstract reads:
“Now on this 18th day of April, 1907, come again the parties hereto by their respective attorneys, and this cause having been heretofore by tlie court taken under advisement and being now fully advised in the premises, doth announce his findings for the defendant.
“It is therefore considered, adjudged and ordered by the court that the defendant take nothing by their action and that the defendant have and recover of and from the plaintiffs their costs and charges in this behalf expended.
“Now on this 20th day of April, 1907, come the plaintiffs and by leave of court file their motion for a new trial herein.
.“Now on this 24th day of April, 1907, come the parties by their attorneys and plaintiffs’ motion for a new trial is by the court taken up and considered, and the court doth overrule the same.
“Now on this 25th day of April, 1907, come the plaintiffs and file their affidavit and bond for appeal which said bond is approved and the appeal is granted to the Supreme Court and plaintiffs are granted ninety days in which to prepare and file bill of exceptions herein.”
The abstract in terms does not charge this to have
In the latter case, Lamm, P. J., following the Be-doll case, said: “It is a marvel that excellent counsel will not heed the interpretation given of our rules and warnings .judicially iterated and reiterated. We do not interpret our rules otherwise than equitably. For an instance, by an implication from data furnished in the abstract, other data might be added and rounded by supplying an element omitted. But there is nothing in this abstract from which we can see that the entries referred to were made at the judgment term of the circuit court of St. Charles county, or at any term at all.” *
The record in the case at bar more nearly falls within the views expressed in the more recent case of Bank v. Hutton, 224 Mo. l. c. 51, whereat we said: “The same disposition must be made of points a and b. This because we take judicial notice of the sitting
The latter portion of this quotation may appear to be broad language, but when the statute and the rulings are considered we think not. When the court once meets then any adjournment to a later day makes such later day a part of the same term. [Fannon v. Plummer, 30 Mo. App. 25.]
The same should be true where the sheriff under order of the judge under section 3869, Revised Statutes 1909, adjourns the term. However the statute, section 3871, Revised Statutes 19091, then speaks of a special term of the circuit court, which may be called by the judge thereof “whenever any person charged with an offense shall be confined in jail two months before the regular term,” and authorizes the judge un
We are inclined to the view that when all the cases are considered the abstract can be sustained upon this point. What is here said applies with equal force to the other two objections named above.
III. It is next insisted that the record is deficient in that it does not properly set out all the evidence. This contention seems to be based upon the idea that the questions and answers must be set forth. To start with, in a case at law, it is only necessary to call attention to such matters as bear upon the points urged for reversal, unless a demurrer to the testimony is interposed and that point pressed here. If a demurrer to the testimony is interposed then all of the evidence in the case is necessary for the consideration of that question. In this case we find no such condition. No demurrer was interposed and the case might be considered here upon less than all the testimony. In other words a case might be presented where the sole question was the propriety of giving or refusing certain instructions. In such case it would be sufficient to say
This, however, is adrift in the ease at bar. Here, all the evidence is purported to be set forth in narrative form, and if not fairly set'forth the opposite party has the right'to file an additional abstract. If such additional abstract is found to have been necessary the statute affords a remedy as to costs thereof.
The abstract of the evidence may be scant, but it sufficiently complies with the rule and practice of this court. This objection is therefore everruled.
IV. This brings us to the merits of the case. G-oing to the merits one proposition will suffice. Under a deed from John B. Marshall to W. S. Randall made in 1895, it is contended by appellant that Marshall deeded to Randall an undivided half interest in the land in question; The description in this deed and the deed itself for that reason is questioned by respondent.
But for the purposes of the point in mind we may, •without so deciding, hold that the description was sufficient, yet the judgment nisi was right.. Be it conceded as contended by appellant that this deed of 1895 so op
It is practically conceded in this case that if the holding of Marshall was adverse to his alleged co-tenant Randall, then such holding, added to the holdings of Marshall’s subsequent grantees, would make up the full term of ten years prior to the institution of this suit. The case is one at law. It was tried before the
This obviates a discussion of the uncertain description in some of the deeds in evidence. Let the judgment be affirmed.