Pfotenhauer v. Ridgway

WALKER, P. J. This is a suit in equity to rescind a contract, and for a judgment against the respondents for certain money alleged to have been paid by the appellants to the respondents in consummation of the contract ; and for the re-delivery by the respondents- to appellants of a certain share of stock, and the cancellation *532 of a mortgage on certain lots in Baxter Springs, Kansas, made by tbe appellants to tbe respondents, and for an accounting. After a hearing tbe court found tbe issues for tbe respondents and entered a judgment in their favor, whereupon tbe appellants filed an affidavit for an appeal to tbis court, which-was granted. In tbe orderly course of procedure tbe necessity of rules for tbe guidance of litigants seeking a review of cases in tbis court bas long been recognized. More than fifty years ago the General Assembly, supplementing tbe inherent power of the court in tbis regard, enacted a statute (Sec. 38, Laws 1871, p. 50; now Secs. 1480' and 1481, R. S. 1919) declaratory of tbe authority of tbe Supreme Court to make and promulgate suitable rules and regulations deemed necessary in carrying into effect tbe provisions of the foregoing statute. Further1 than tbis. a statute (Sec. 1511, R. S. 1919') provides that “on appeals and writs of error each party shall . . . make out and furnish the court with a clear and concise statement of tbe case and tbe points intended to be insisted on in argument.” Tbe Supreme Court, in conformity with tbe legislative declaration of its power, among other mandatory requirements necessary to be complied with to authorize a review upon appeal or writ of error, bas prescribed as a part of its Rule Fifteen that ‘ ‘ Tbe brief of appellant shall distinctly allege tbe errors committed by tbe trial court and shall contain, in addition thereto; (1) a fair and concise statement of tbe facts of tbe case without reiteration, statements of law or argument; (2) a statement in numerical order of tbe points relied on, with citation of authorities- thereunder. ... No brief or statement which violates tbis rule will be considered.” It is appropriate first to consider the sufficiency of appellants’ formal assignments of error. Tbe first, that tbe court erred in rendering judgment in favor of tbe defendants, is too broad to entitle it to consideration. The purpose of an assignment is to point *533 out specifically what is relied on as error. A judicial recognition of an error couched in the language of the foregoing would render it the duty of the appellate court to sift the record to determine the merit of an assignment — a task it is not incumbent upon it to perform. The second assignment, that the court erred in denying the motion for a new trial, is likewise too general to be available as a ground of error. While the motion for a new trial if properly framed may, as we have frequently ruled, serve the purpose of a formal assignment of errors, a general assignment that error was committed in the overruling of the motion adds nothing to its force or effectiveness and does not merit consideration as a formal assignment. In harmony with this reasoning it has been held in another jurisdiction that an assignment of error based on the overruling of a motion will not be noticed where the court’s action thereon is otherwise apparent of record, as in the case at bar. [Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487.] The third assignment is based upon error alleged to have been committed in the admission by the trial court of incompetent testimony. An assignment of this character in an equity case complies with no statute or rule of court; it tends to preserve no right of the appellant, nor to emphasize a duty incumbent on the court. It is a familiar rule of procedure in equity cases that where an. appellant brings up the entire record the appellate court will sift the testimony and separate the competent from the incompetent, regardless of the rulings of the trial court thereon. [Rinkel v. Lubke, 246 Mo. 377; Hiemenz v. Harper, 275 Mo. 380; Griffin v. Nicholas, 224 Mo. 275.] This assignment therefore answers no'necessary or useful purpose and is superfluous. There is lacking, therefore, from the record such a collective assignment of errors as will authorize a review of the case, unless, as we have indicated, the appellants in their required statement of Points and Authorities have clearly indicated the errors on which they rely to secure a reversal. [Coe v. Greenley, 295 Mo. 664, and *534 cases p. 666; Vahldick v. Vahldick, 264 Mo. 529, and cases p. 532.] In. the absence of these nothing is left for onr consideration. An examination of what the appellants term their “Statement, Brief and Argument,” while containing a portion entitled “Points and Authorities,” is found, upon an examination, to embody none of the essentials to entitle it to that designation. It is neither a clear and concise statement of the facts of the case and the points intended to be insisted on in argument as required by the statute (Sec. 1511, supra), nor does it contain a brief in which the appellants distinctly allege the errors committed by the trial court, and, in addition, present a fair and concise statement of the facts without reiteration, statements of law or argument; nor a statement in numerical order of the points' relied upon with citation of authorities thereunder, as plainly required by Rule Fifteen of this court. In lieu of any attempt to comply with these requirements there is presented, under the heading of Points, and Authorities, a reiteration of'the facts which had theretofore been set forth in appellants’ Statement; a presentation of the reasons at length for the trial court’s equitable cognizance of the case; and a lengthy argument on the merits'. The condition of this record, therefore, is such that we are not called upon or required to search with painstaking particularity to determine whether error authorizing a reversal had been committed. The legislative and judicial requirements defining the duty of litigants seeking a review of cases in this court are plain, simple and easy of compliance. To ignore them utterly, as has been done in this case, is inexcusable. The reasons, therefore, are ample to authorize a dismissal of this appeal. The right and the duty of this court to dismiss this appeal cannot be held to operate harshly, because the grounds therefor are based wholly upon the record as made by the appellants. While the law grants the right of a review to litigants in cases determined in the trial *535 courts, as a condition precedent to the exercise of that right they are required to conform to the statute and the rules of the court regulating the same. Expressed differently, the right being wholly statutory, a compliance with its mandatory conditions is an essential requisite to its exercise. However, not content with a summary disposal of the case, we have, with some degree of care, examined the testimony. This we have done upon the presumption that the so-called “Abstract of the Record” preserves and presents all of the evidence. Otherwise in a case of the character under review this examination would be unauthorized. [Huggins v. Hill, 236 S. W. (Mo.) 1051; Ford v. Laughlin, 285 Mo. 533; State ex rel. Guinan v. Jarrott, 183 Mo. l. c. 217.] Acting upon the foregoing presumption we have examined the record with a view to determining if the issues pleaded by the appellants are sustained by the evidence. These issues summarized are as follows: 1. That respondents, misrepresented the purchase price paid by them to one Schwartz for the agency. 2. That respondents fraudulently represented that they had earned and received as commissions and profits from the agency $12,608.01 in eleven months. 3. The respondents misrepresented their reason for selling the agency. 4. That respondents made this contract of sale with the intention to and did solicit away appellant’s business. It is enough to say that the first issue pleaded is not supported by the testimony. The second issue is contradicted by the testimony of the appellants themselves. ¡ The third issue, instead of sustaining the appellants ’ pleading in reference thereto, tends more strongly to prove the truthmf respondents’ testimony in regard to their reasons for selling the agency. Tlie fourth issue is contradicted by a number of witnesses whose testimony is neither referred to nor discussed in appellants’ statement. *536 A summary of our conclusions in regard to the probative force of all of the testimony is that it does not present such clear, cogent and convincing proof of the frauds charged as to leave no room for reasonable doubt in the chancellor’s mind as to its- existence. The trial court' so found. While not controlled by, we defer, with reasonable prudence, to the findings of fact of the trial court in equity cases, unless we are satisfied that court’s findings, are against the weight of the evidence. We do not so find. If, therefore, the record had been so prepared and presented as to authorize a determination of this case on the merits, we would feel impelled to follow the findings of the chancellor below and decree the issues in favor of the respondents. [Carpenter v. Kendrick, 252 S. W. (Mo.) l. c. 651; Bourg v. Mfgrs’ Ry. Co., 245 S. W. (Mo.) l. c. 44 and cases; Davies v. Keiser, 246 S. W. (Mo.) 897; Williamson v. Frazee, 294 Mo. 320.] In view of the condition of the record, however, and in conformity with the usual and authorized procedure, the appeal in this case should be dismissed. It is so ordered. All concur.