Sullivan v. Holbrook

211 Mo. 99 | Mo. | 1908

LAMM, J.

On November 12, 1903, Mrs. Sullivan lodged a bill in equity in tbe Greene Circuit Court, the object and general nature of which was to set aside and vacate (1) an executed judgment in partition; (2) the deed to the purchaser (Seamans) at said partition sale; (3) certain conveyances from Seamans to Holbrook and from Holbrook to Judge Goode (and- others between the Jarretts and Seamans) conveying lot one in E. T. Robberson’s addition to the city of Springfield in said county; (4) to declare, establish and execute a trust in said lot under the will of Sue E-. P. Montgomery, the maternal ancestor of plaintiff, who died testate seized of said real estate; (5) to determine and establish the rights of plaintiff under the will of her said mother; (6) to have an accounting of rents and profits; and (7) for general equitable relief.

Among other things, it was alleged in the hill and shown by the proofs that,plaintiff attained her majority on January 9th, 1894. That she was thereafter (in 1895) made a party defendant in a partition suit instituted in the. Greene- Circuit Court, having for its object the partition of said real estate, among certain heirs and the grantees of certain heirs of said Sue E. P. Montgomery, and the sale of said lot. ' That proceedings were had in that case resulting in a partition and sale of the lot in 1895. That plaintiff received and appropriated her share of the proceeds of that sale. The record shows plaintiff executed, in that behalf,' the following acquittance:

“Office of Sheriff of Greene County, Mo-.,

. ' “February 3rd, 1896.

“Received of F. M. Donnell, Sheriff of Greene County, the sum of two hundred and twenty-eight dollars and 75-100 dollars, being in full of my distributive share of real estate sold by partition wherein E. D. Seamans was plaintiff and Kate Hardin et ah, were defendants.

$228.75. Kate Hardin.

• “State of New York, County of New York, ss'. '

‘ ‘ On this 8th day of February, 1896, before me personally appeared Kate Hardin, personally known to. me to be the same person and acknowledged that she-executed the signature on the within receipt for the purposes mentioned, and of her own free will and deed; and that she signed the same. Witness my hand and seal the day and date above stated.

“R. P. Hess, (158)!

Notary, public,

“(Seal.)' NewYork Co.”

■ No appeal' was taken from the interlocutory judgment in partition, and hone from the order approving the report of sale.'

.The allegations of the bill' on which it is sought to overturn the partition, the sale and the sundry deeds made.in connection therewith are (in substance) fraud in the concoction of-.the judgment, between, defendants Holbrook, Seamans and J. H. Jarrett- .in. divers enumerated- particulars. It is also alleged that Judge Goode5 who subsequently purchased-a small part of the lot. fr.om -defendant Holbrook, had notice of the existence of a--trust created by- Mrs. Montgomery’s, will, which .(it.is said) was-an impassable barrier in.the road of .partition, and which latter was made in violation of the express .terms of the will..

•Plaintiff; -in this suit'was originally brought into the partition suit as a party defendant by constructive service,, eventually however appearing .by an attorney and filing answer. There were two sales made under the judgment in partition — -the first, set aside for inadequacy in the accepted. bid. .In her-motion filed in that-case, challenging the confirmation .of the first sale, she appeared by other attorneys. A-second sale-.was made and confirmed. Afterwards she partook of the proceeds and executed the receipt, herein-before set forth. To avoid the effect of that receipt and these appearances, -she alleges -not that she did not receive the money represented by the rceipt, but that ..she was deceived and misled in the-premises in wavs pointed out. She testified at the trial, -that the appearance of. attorneys on her behalf in the partition proceeding was unauthorized by her, but was authorized by.her sister,-who (with her-knowledge) assumed to look after her affairs. • ■

.The.chancellor, nisi,.found-in favor of defendants in.T-;the;ca§e at. bar and-plaintiff appealed - to -the St. Louis. Court of- Appeals. ..The title- to real- estate was plainly' .inyqjyed (sec...12, art, 6, Constitution-; -section 5,-ofi .th.e amendmenj; to-the Constitution in 1884), and the appeal should have been brought in the first- instance to this court. The case was briefed in the St. Louis Court of Appeals, and when reached for determination there was at once certified here, as of course.

I. By rule 15 of the St. Louis Court of Appeals it is provided that an appellant shall file “four copies of a brief, containing: First. A clear and concise statement of the pleadings and facts shown by the record. Second. . An enumeration in numerical order of the points or legal propositions made or relied on, accompanied by the citation of authorities supporting each proposition. Third. If he so elects, an argument supporting each proposition made or relied on.”

By rule 17 of that court it is directed that in citing authorities in support of any- proposition it shall be the duty of counsel to give the names of the principal parties to any case cited from any report of adjudged cases, as well as the number of the volume and the page where the same may be found.

By rule 19 of that court it is provided that, in the discretion of the court, a failure to comply with rule 15 shall result in a dismissal of the appeal or writ of error, or the continuing or resetting the cause on proper terms.

By rule 15 of this court it is provided, inter alia, as follows: “All briefs .... shall contain, separate and apart from the argument or discussion of authorities, a statement, in numerical order, of the points relied on, together with a citation of authorities appropriate under each point. And any brief failing to comply with this rule may be disregarded by the court . . . .

“In citing authorities, in support of any proposition, it shall he the duty of the counsel to give the names of the parties to any case cited from any report of the adjudged cases, as well as the number of the volume and the pages where the same will be found . . . .”

By rule 16 of this court it is provided that if any appellant in any civil case shall fail to comply with rule 15, the court, when the cause is called for hearing, will dismiss the appeal or writ of error; or, at the option of the respondent, continue the cause at the cost of the parties in default.

Comparison will show that the rules of the St. Louis Court of Appeals and of this court are substantial equivalents of each other in the foregoing particulars.- The principal brief and brief in reply filed by appellant’s counsel violate both the spirit and letter of the rules of both courts — in that:

(a) In an array of authorities cited the names of the parties in the cases referred to are omitted, whether by inadvertence or ex industria does not appear.

(b) Not only so, but there is an entire indifference to the' quoted rules in those particulars commanding a separation of legal propositions relied on for reversal from comments of counsel, arguendo. Indeed, appellant presents no brief proper at all — -as required by the established usages of both courts and as understood at the bar. The only authorities cited and the only legal propositions advanced are inextricably interwoven with the warp and woof of a running fire of comment of counsel in twenty-six solid pages of printed matter, labeled by learned counsel himself, “Argument.” This matter is colored and heated with vituperative expletives and rhetorical flourishes, impedimenta, well calculated to divert, or impede, not aid, the judicial mind in its search through the mass for the calm, cold, legal propositions so ambushed and hid away. If learned counsel had paid attention to the rules of court in the logical arrangement and segregation of his legal propositions, and in the proper citation of his authorities, his case would be in a shape contemplated by the-rules, but, as' it is, Ms case is here in ffhe teeth of them. ...

The. rules-of appellate- practice in hand are simple and plain. ■ .-They fill no office of mere red tape, or as a show of surface routine- To the contrary, they have substance, and carry on their face the obvious purpose to aid appellate, courts in getting at the right of a canse. Hence, apparently, they bespeak the dignity arising from obedience. If they are not to he obeyed, they should be done away with once for all. A.just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, hut not, it necessarily wrongs some men, viz,: those who labor to obey it — the very ones it should- not -injure. If the rules in question stand for something and are ever to he enforced-, they should he put in motion in this ease. Accords ingly; they, will he applied.

We hold, therefore, that appellant has no brief here -within -the fair intendment of our rules. - And that, as the burden was on her to point out reversible error and as she' cast .off that burden, the judgT ment should be affirmed.

II. When a cause in an appellate court rides off on a question falling short of the merits it must needs be a matter of solicitude. This being so, the ruling we have just made is softened to- ns by the fact that, we have gone over the testimony and the argument of counsel line by line and, doing the best we can, find no substantial merit in plaintiff’s case. She was of age at the time of the partition. She accepted the frMts of that litigation, enjoying them-for many, years, and.it is-clear..equitable-doctrine-that that she thereby es-topped herself to attack and overthrow;, the .partition proceedings,- -.So, to.o,-she failed to establish the fraud alleged, in her bill .by proof meeting the stringent reT qnirements of the law in setting aside solemn judgments and conveyances — in details not necessary to spread on onr records. She had her day in court. The will .of her mother was there. The title of the parties was threshed out. The alleged .trust was necessarily held in judgment in that case. The complaints she now makes should have been poured into the ear. of the court trying and determining that suit (Interest republicae ut sit finis litium); and, therefore, the very justice of the ease comports well with the disposition made of it because of the violation of our rules. If becomes, then, a very good case to-use to point a moral, viz.: that the rules of court are made to obey, not to break.

The judgment, nisi, is affirmed.

All concur.