Trimble v. Wollman

Gill, J. Counsel for respondent Wollman raise the question as to the sufficiency of the appellant’s abstract, and it must be held that the objection is well taken. As will be seen from the foregoing statement, this is a suit in equity, of triangular interests, and involves the decision of several questions' of fact and law. And, being an equity action, it is made our duty to consider the entire evidence, pass upon issues of fact, and apply the law thereto. In chancery cases, the hearing on appeal may not improperly be termed a trial de novo. The appellate court ought, as near as may be, to be put in the place of the judge who tried the case below. In arriving at the exact facts of a controversy such as this, all the evidence brought forward in the trial court, and used there to enlighten the judge, should be submitted to the appellate court, and for the same reason. The burden of thus presenting a full record is imposed on the appellant by rule 15 of this court. By said rule, the abstract should embrace all that “is necessary to a full understanding of all the questions presented to this court for decision.” How can we fully understand and satisfactorily determine litigated questions of fact, which we are called on to decide, except we have before us all the evidence adduced at the trial? How can we say that the lower court correctly or erroneously found the facts at issue, unless we are furnished with the entire testimony? It has been uniformly held in this state, [549] that in all cases where the appellate court is asked to review the evidence and determine its probative force, the whole of it, or so much thereof as pertains to the questions at issue, should be set out in the abstract. Goodson v. Railroad, 23 Mo. App. 76; Nichols v. Nichols, 39 Mo. App. 291; Dale v. Hogan, 39 Mo. App. 648; Gunby v. Rogers, 42 Mo. App. 465; Irvine v. Karnes, 58 Mo. App. 254; State ex rel. Allen v. Judges, St. L. C. C., 41 Mo. 574; Garrett v. Coal Mining Co., 111 Mo. 279; Brand v. Cannon, 118 Mo. 595; 2 McQuillan’s Plead, and Prac., see. 2074; Finkelnburg Mo. App. Prac. 103. See also rule 14 of this court. The abstract we have here falls far short of the foregoing requirements. Respondent’s counsel have pointed out its many deficiencies. It is shown that more than one third of the one hundred and seventy pages of typewritten testimony, introduced at the trial, is omitted from the printed abstract, and much of it, too, quite material in its tendency. The testimony of different witnesses is shown to have been cut down and abbreviated from twenty-five to seventy-five per cent, in the abstract, while that of at least one witness is entirely left out; letters, too, which would seem to lend light to the controversy, are omitted. ' It is hardly an answer to these objections to the sufficiency of the abstract that appellant’s counsel have honestly incorporated therein all. the evidence they deemed important. We might differ with counsel as to what portions of the testimony were material and important. Much of this omitted evidence' seems to bear materially on the issues involved. The court below evidently thought it material, or it would not have been admitted. We have read every word of the testimony given in the abstract, and, considering the nature and character thereof, we deem it important to have all that was produced in the court below. This [550] case presents some very close questions of both law and fact. For violation, then, of rule 15, the appeal will be dismissed. Smith, P. J., concurs; Ellison, J., not sitting.