Opinion
April 1, 1940.
1. — Appeal and Error. Statement reciting, "the institution of the suit in the justice court for unlawful detainer; that judgment was there rendered in favor of the plaintiff; then an appeal was taken to the circuit court; that the complaint was there amended, setting out the particulars in which it was amended; that default judgment was rendered against the defendant, and that the point for our determination was whether or not the amended complaint constituted an entirely different cause of action from the cause of action on which judgment was rendered in the justice court, and whether or not, under such circumstances, the judgment rendered in the circuit court on the amended complaint constituted a valid judgment" reasonably complies with the requirements of Rule 16 of the Court of Appeals, and without warrant dismissal of writ of error.
2. — Appeal and Error. Appeal would not be dismissed on the ground of violation of Rule 17 of Court of Appeals, in that there were no assignments of error in conformity therewith, and that points and authorities were insufficient, where, though there was not separate assignment of errors, there are four points separately under "Points and Authorities." The first point contains a clear statement of the contention of the plaintiff in error, actually the only point in the case in view of the absence of any bill of exceptions, supported by authority.
3. — Appeal and Error. Appeal will be dismissed for failure to include any index whatever in abstract of record, in violation of Rule 30 of Court of Appeals, notwithstanding brevity of abstract of record.
Error to Buchanan Circuit Court. — Hon. F.J. Frankenhoff, Judge.
WRIT OF ERROR DISMISSED.
Louis Kranitz for plaintiff, defendant in error.
(1) Plaintiff's in error statement is insufficient and violates Rule 16. Bank of Meta v. Schnitzler et al., 67 S.W.2d 106, l.c. 107; Strother v. Kansas City, 316 Mo. 1067, 296 S.W. 795; Terry v. Ingraham et al. (Mo. App.), 12 S.W.2d 763; McDonnell v. Hawkeye Life Ins. Co., 84 S.W.2d 387, l.c. 388, 389; Robert v. Hogan (Mo. App.), 269 S.W. 652; Flanagan Mill. Co. v. St. Louis, 222 Mo. 306, l.c. 309, 121 S.W. 112, 113; Houck v. Bridwell, 28 Mo. App. 644; Round Prairie Bank v. Downey (Mo. App.), 64 S.W.2d 701; Neff v. Sovereign Camp, W.O.W., 226 Mo. App. 899, 48 S.W.2d 564. (2) Plaintiff in error has failed to file his assignments or error, in violation of Rule 17, nor are the "points and authorities" sufficient to appraise the court distinctly and separately as to the errors alleged to have been committed by the lower court. Nash v. Buehler, 26 S.W.2d 859; Galbreath v. Galbreath, 24 S.W.2d 202; Brown v. Dawes, 76 S.W.2d 714; Pense v. K.C. Laundry Serv. Co., 332 Mo. 930, 56 S.W.2d 633; Sharp v. Ry. Co., 139 Mo. App. 525, 123 S.W. 507; State v. Parsons (Mo.), 285 S.W. 412; Mahmet v. Am. Rad. Co. (Mo.), 294 S.W. 1014; Rusch v. Vallee, 237 S.W. 111; Independence Ave. Bank v. Commercial State Bk., Mt. Wash., 253 S.W. 163; Le Clair v. Le Clair et al., 77 S.W.2d 862, l.c. 864; Scott v. Mo. Pac. R. Co., 333 Mo. 374, 62 S.W.2d 834, 840; Seewald v. Gentry, 220 Mo. App. 367, 286 S.W. 445; Artz v. Bannan (Mo. App.), 71 S.W.2d 795. (3) Plaintiff's in error brief is insufficient for the reason that it fails to provide an index and violates Rule 30. (4) (a) Remedy by writ of error is not available to plaintiff in error in this case. Writ of error is a new action, not a continuation of the original action and must contain on its face the evidence of the right of plaintiff in error to a review. Fidelity Tr. Co. v. Mexico, S.F. P. Traction Co., 270 Mo. 488, 194 S.W. 52; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977. (b) The office of the writ of error is to call attention of the court to, and obtain relief from errors of fact, but it does not lie to correct errors of law. The matter of fact must not be known to the court for if it is known and yet the court act erroneously, or illegally, it is an error of law in the court and should in that proceeding be taken to a higher tribunal for reversal instead of making application to the court itself. Mefford et al. v. Mefford, 26 S.W.2d 804, l.c. 806; Hecht Bros. Clo. Co. et al. v. Walker et al., 35 S.W.2d 372, l.c. 374. (5) Unless a bill of exceptions is allowed, nothing is presented for appellate review except the record proper. Bakersfield News et al. v. Ozark Co., 338 Mo. 519, 92 S.W.2d 603, l.c. 604. (6) (a) Before a plaintiff in error is entitled to review on a matter of exception on the trial of a cause, he must save exceptions to the rulings of the court. Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977; (b) Plaintiff in error must have made objections and saved exceptions to the court's rulings and must thereafter have brought the trial court's attention thereto by motion for new trial. Dawson v. Scott et al., 49 S.W.2d 87; Colin et al. v. Maldenhaur et al., 92 S.W.2d 601; (c) Only a bill of exceptions can make a motion a part of the record. Hampe v. Versen (Mo. App.), 32 S.W.2d 797, l.c. 798; (d) Motion to set aside judgment can be preserved for consideration of appellate court only by incorporating it in a bill of exceptions. Haigt v. Stuart (Mo. App.), 31 S.W.2d 241, l.c. 242; (e) All adverse rulings on motions must be preserved in bill of exceptions to permit review thereof. Marsden v. Nipp, 325 Mo. 822, 30 S.W.2d 77, l.c. 81; Fulton Loan Service v. Colvin (Mo. App.), 81 S.W.2d 373, l.c. 374; (f) Rulings on amendment of pleadings are proper subject of exception. Nichols v. Stevens, 25 S.W. 578; Reaves et al. v. Pierce, 27 S.W. 611, 123 Mo. 96; Chance v. Jennings, 159 Mo. 544, 61 S.W. 177; Wentzville County v. Walker, 123 Mo. 663, 27 S.W. 639; Linn County v. Bank, 175 Mo. 539, 75 S.W. 393. And rulings on overruling motion for new trial are likewise proper subject of exception and must be set out in bill of exceptions. Danforth v. Ry., 123 Mo. 196, 27 S.W. 715; Fischman v. Kahn (Mo. App.), 67 S.W.2d 776, l.c. 777. (7) (a) Record proper must show that bill of exceptions was made part of the record. Birmingham v. Warren (Mo.), 34 S.W.2d 115, l.c. 116; (b) Bill of exceptions which is not shown by the record proper to have been allowed, signed by trial judge, and ordered filed and made part of the record, is not before the appellate court. Hampe v. Versen (Mo. App.), 32 S.W.2d 797. Absence of showing that purported bill of exceptions contained in abstract is true bill signed by judge and made part of record warrants a holding that the bill lacks proper identification. Kansas City Bld. Loan Ass'n. v. Harding, 58 S.W.2d 795. On writ of error where bill of exceptions contains no exception to ruling on motion for new trial, the record proper is held the only basis for assignment of error and matters of exception are not reviewable. Kansas City Bldg. Loan Ass'n. v. Harding. (8) (a) Appeal should be dismissed where the abstract of the record on appeal commingles record proper and bill of exceptions so that one cannot be distinguished from the other. Le Clair v. Le Clair (Mo. App.), 77 S.W.2d 862, l.c. 865. (b) No motion is part of the record unless it is incorpporated in a bill of exceptions. Bulloch v. B.R. Elec. Sup. Co., 227 Mo. App. 1010, 60 S.W.2d 733, l.c. 735. (c) In absence of showing in the record proper or in bill of exceptions that an objection was made and exception saved to the action of the circuit court in permitting and amendment, the matter is not properly before the court of appeals for review. Bradbury v. Hawthorne Coal Co. (Mo. App.), 85 S.W.2d 908, l.c. 909; Anderson v. C.G.W.R. Co. (Mo. App.), 71 S.W.2d 508. (d) Where appellant (plaintiff in error) files no bill of exceptions, though the clerk copied into the transcript a number of motions and the rulings of the court thereon, such rulings cannot be considered. Godman v. Gordon, 61 Mo. App. 685. (9) (a) A motion for new trial must be filed within four days after the trial and a motion filed thereafter is a nullity. Sec. 1005, Rev. Stat. Mo., 1929; Landau v. Consumers Mill Product Co. (Mo.), 36 S.W.2d 921, l.c. 922. (b) The record on appeal must affirmatively show that the motion for new trial was filed within the specified time. St. Louis v. Boyce, 130 Mo. 572, l.c. 574, 31 S.W. 594. (c) The bill of exceptions must show that the motion for new trial was overruled and exceptions saved so as to be reviewed. Bradbury v. Kerns, 115 Mo. App. 99, l.c. 100, 91 S.W. 437. (d) The statute fixing the time within which motion for new trial must be filed is mandatory and must affirmatively appear from the record St. Louis Law Ptg. Co. v. Aufderheide, 226 Mo. App. 680, 45 S.W.2d 543, l.c. 545. (10) (a) A complaint in unlawful detainer containing the substance of every element required by R.S. 1929, sec. 2447, states a good cause of action under the first clause thereof. Utt v. Winfrey (Mo. App.), 235 S.W. 185; Shannon v. Zimmerman, 162 Mo. App. 686, l.c. 687; Gossett v. Devorss, 98 Mo. App. 641, l.c. 647, 648; Ish v. Chilton, 26 Mo. 256, l.c. 258. (b) Complaints made in justice court are reviewed with leniency in determining sufficiency thereof. K.C. Bldg. Loan Ass'n. v. Harding, 58 S.W.2d 795. (c) Amendments should be liberally allowed in the furtherance of justice, especially in proceedings before justice of the peace where formality of statement is not required. Camel v. Evans (Mo. App.), 107 S.W.2d 140, l.c. 142. (d) There is a tendency of the courts to give liberal interpretation to statutes authorizing amendments of pleadings in justice court and on appeal therefrom. Cindrick v. Scott, 226 Mo. App. 153, 42 S.W.2d 957, l.c. 959. (e) Defendant in going to trial on amended complaint in action appealed from justice court, waived any objection to amended complaint. Cindrick v. Scott, supra. (f) Exceptions to amendment must be made at the time in the circuit court. Answering and going to trial is a waiver of objection. Matthews v. Purdue, 79 Mo. App. 149, l.c. 153; Meadows v. Ry., 82 Mo. App. 83; Warner v. Close, 120 Mo. App. 211, 96 S.W. 491. No assignment of errors. (11) (a) Where appellant makes no formal assignment of errors, but merely states abstract propositions of law in his brief, under the heading of "Points and Authorities" without connecting such propositions with any ruling of the court, the appeal will be dismissed. Duffy v. Allen, 281 Mo. 629, 220 S.W. 857; Rusch v. Vallee, 237 S.W. 111. (b) The failure of appellant in its brief to assign errors committed by the court, formally and separately, as required by the Kansas City Court of Appeals rules 15 to 17, requires dismissal of appeal under rule 18. Independence Ave. Bank v. Commercial State Bank, 253 S.W. 163. Dismissal of appeal for failure to assign errors in his brief cannot be prevented by the filing of a supplemental abstract after respondent has served his brief and other papers calling attention to the defect. Independence Ave Bank v. Commercial State Bank, supra; Wheeler v. Shull, 282, S.W. 61, l.c. 62; Quigley v. Linda Vista, 1 S.W.2d 851, l.c. 852. (12) Plaintiff in error has complied with the judgment of the court below by the removal from the premises. (a) An appeal will be dismissed where the judgment or decree appealed from has been satisfied or complied with by appellant. Myher v. Myher, 113 S.W. 689. (b) The reasons which may have induced appellant to satisfy the judgment are not material. Bull v. Doss Bros. Elec. Const. Co., 119 P. 156; Trumbull v. Jefferson Co., 79 P. 1105. (13) The writ of error in this case presents a moot question. (a) Appellate courts do not sit to give opinions on moot questions or abstract propositions and appeals or writs of error will be dismised where no actual controversy exists between the parties at the time of the hearing. St. Louis Transfer Co. v. Alt, 256 Mo. 496, l.c. 501, S.W. 1038; Union Elec. v. St. Louis, 253 Mo. 592, 161 S.W. 1166; State v. Imel, 243 Mo. 180, 147 S.W. 989; Hughes v. Winkelman, 243 Mo. 81, 147 S.W. 994; Hicks v. St. Louis, 234 Mo. 647, 138 S.W. 342; Collins v. Crawford, 103 S.W. 537; Webb City v. Tibbs, 116 S.W. 1135; Myher v. Myher, 113 S.W. 689; In re Beal, 5 Mo. App. 583. (d) Condition rendering grant of relief by appellate court impossible or decision unnecessary so as to require dismissal of appeal, may arise by act of appellant or plaintiff in error. Selected Prod. Corp. v. Humphreys, 86 F.2d 821. (c) Where the rights of parties can be asserted in other litigation after the issues in the instant case are over, the appeal will be dismissed. State v. Jackson (Texas), 101 S.W.2d 346. (d) When at the time of the disposition of a cause, the situation is such that the relief sought is no longer available or of any use to plaintiffs and a decision by the court will not be applicable to existing right, no decision will be rendered since the questions originally involved have become moot. Hubrite Informal Frocks v. Kramer (Mass.), 9 N.E.2d 570. (14) The so-called "Abstract and Argument" of plaintiff in error does not contain an index as provided by Rule 30 of the Kansas City Court of Appeals, by reason of which the writ of error must be dismissed. Rule 30, Kansas City Court of Appeals. — "The abstract mentioned in Rule 15 shall have a complete index at the end thereof. . . . If any appellant or plaintiff in error shall fail to comply with this rule the court when the cause is called for hearing, will dismiss the appeal or writ of error. . . ." (15) Required notice before the issuance of the writ of error in this case was not given as provided by Rule 31 of the Kansas City Court of Appeals. The record in this Court shows that plaintiff in error sued out the writ on the 26th day of July, 1939; that same was issued thereafter on the 28th day of July, 1939, but notice of same was not served upon or acknowledged by defendant's in error attorney until August 16, 1939. Horace Merritt and Meyer Imbersteg for defendant.
(1) The judgment final in this cause is upon the record absolutely illegal because it affirms the judgment of the justice based upon a complaint that the defendant wrongfully and without force by disseizin obtained and continues in possession of the said premises after demand for the delivery of possession thereof, which said cause of action had been abandoned, and the only complaint or cause of action before the circuit court on the date of its said judgment was a new and different complaint, was an abandonment of the original cause of action, and therefore, the court had no jurisdiction of said original cause of action and could not take jurisdiction of the new cause of action for the reason that the Justice of the Peace court has original and exclusive jurisdiction of the commencement and institution of actions in unlawful detainer. Howes v. Muir, 226 S.W. 610-612. (2) The judgment written for the court by attorney for plaintiff, says, "evidence heard," it appears in the record that this was erroneous and no evidence was heard, and this judgment so written by the attorney also says that the judgment of the justice is affirmed. This upon its face is a gross perversion of justice and disregard for the law and the constitution. (3) The judgment is erroneous and illegal upon its face because it recites that the judgment includes in addition to $200 damages the sum of $20 per month for rents and profits. Damages may not be awarded in circuit court in greater amount than originally claimed. Moore v. Dixon, 50 Mo. 424. (4) Action must be brought in the name of real party interest. Sec. 698, R.S. of Mo. 1992; Fed. Res. B. v. Whitford, 207 N.C. 267, S.E. 584. (5) Burden was on plaintiff to establish ownership of the note sued on. Franklin Bank v. St. Louis Car Co., 321 Mo. 199, 9 S.W.2d 901, 905, l.c. 208; 11 C.J.S., p. 92, sec. 659, sub-sec. (b); Credit Alliance Corp. v. Bryan, 27 S.W.2d 441. (6) Presumption of ownership arising out of possession of note by plaintiff is a mere presumption of fact, does not constitute evidence and is destroyed by the introduction of evidence (on the part of the plaintiff or defendant) that plaintiff did not own the note. And such presumption was destroyed by plaintiff's own evidence that he did not own the note but that it had been assigned to a corporation he had formed named "Stalcup, Inc." Fed. Res. B. v. Whitford, 207 N.C. 267 S.E. 584; Brannock v. Jaynes, 197 Mo. App. 150, l.c. 168; Mackowick v. K.C., etc., Ry. Co., 196 Mo. 550, 571; Glassman v. Harry, 182 Mo. App. 304, 308; Morton v. Heidorn, 135 Mo. 608; 11 C.J.S., p. 99, sec. 660; 22 C.J., p. 124, sec. 61. There being no evidence to support plaintiff's charge of ownership of note and the burden being on plaintiff to prove such, the court should have given defendant's Instruction No. (a) in the nature of a demurrer to the evidence. Fed. Res. Bk. v. Whitford, 207 N.C. 267, 176 S.E. 584; Franklin Bank v. St. Louis Car Co., 321 Mo. 199, 9 S.W.2d 901, 905, l.c. 208; 11 C.J.S., p. 92, sec. 659, sub-sec. (b); Taylor v. Fuqua, 203 Mo. App. 581, 219 S.W. 971. (8) It was error for the court to give plaintiff's Instruction No. (1) since it ignored defendant's special defense of failure of consideration that plaintiff did not furnish defendant what he agreed to furnish as a consideration for the note sued on, namely a new sign. 1 Blashfield on Instructions, p. 26, sec. 13; Booth v. Lay, 83 Mo. App. 601; Percall v. Met. Ry. Co., 126 Mo. App. 43; Desnoyers Shoe Co. v. Leisman Ramsey, 85 Mo. App. 340; Holliday, etc. v. Moss, etc., 87 Mo. App. l.c. 167; Linn v. Massillion Bridge Co., 78 Mo. App. 111, 118. (9) The giving of Instruction No. (3) offered by defendant, which submitted for the jury's consideration defendant's special defense of the failure of plaintiff to give defendant a sign, did not cure the error in the court's giving plaintiff's Instruction No. (1) since the two instructions were conflicting and the giving of conflicting instructions is reversible error. Holliday v. Moss, 87 Mo. App. l.c. 177; Wojlyak v. Coal Co., 188 Mo. 261, l.c. 283; Spillane v. Ry. Co., 111 Mo. 555, l.c. 565; Stevenson v. Hancock, 72 Mo. 612, l.c. 614. (10) Defendant had a right to rescind the contract for the purchase of sign as soon as he discovered he had not gotten what he contracted for, and the evidence is that defendant tendered to plaintiff the sign he had furnished as soon as he discovered he did not get a new sign. Boeker v. Crescent Belting Packing Co., 101 Mo. App. 429; Aeolion Co. v. Boyd, 65 S.W.2d 111; Beyer v. Conroys, Inc., 32 S.W.2d 763; Reco v. Peter, 185 S.W. 752; Powell v. Dorton, 321 Mo. 639, 12 S.W.2d 453.
This is a suit in unlawful detainer instituted by the filing of complaint before a justice of the peace for Washington Township in Buchanan County. Upon change of venue, the case was tried before a justice of the peace for Bloomington Township in said county, wherein a judgment was rendered in favor of the plaintiff. From this judgment an appeal was taken to the circuit court of Buchanan County, where, following an amendment of the complaint, a judgment by default was rendered in favor of plaintiff and against defendant. Following this adverse judgment, the defendant filed in this court his application for writ of error, upon which application our writ was duly issued.
Preliminary to any review of this matter on the matter on the merits, we are confronted with the motion of defendant in error (Plaintiff below) to dismiss the writ of error. The grounds assigned for dismissal are as follows:
(1) Because the statement filed by plaintiff in error fails to comply with Rule 16 of this court, in that it does not consist of a clear and concise statement of the case, without argument, reference to issues of law, or repitition of testimony of witnesses", and that said statement is insufficient "to enable the court to be informed of the material facts of the case by the statements, without being compelled to gleam them from the abstract of the record." (The quoted language is from our Rule 16.)
(2) Because plaintiff in error has violated Rule 17 of this court, in that he has filed no assignments of error in conformity with the requirments of said rule to the effect that "plaintiff in error shall distinctly and separately allege the errors committed by the inferior court," and further that the "Point and Authorities" set out in the brief fail to sufficiently appraise the court as to the errors alleged to have been committed by the lower court.
(3) Because the plaintiff in error has violated Rule 30 of this court in failing to have a complete index at the end of the abstract.
Under the circumstances in this particular case, we think the statement reasonably complies with the requirements of our Rule 16. In this case, no bill of exceptions was filed and only the record proper is brought before us. The statement recites the institution of the suit in the justice court for unlawful detainer; that judgment was there rendered in favor of the plaintiff; that an appeal was taken to the circuit court; that the complaint was there amended, setting out the particulars in which it was amended; that default judgment was rendered against the defendant, and that the point for our determination was whether or not the amended complaint constituted an entirely different cause of action from the cause of action on which judgment was rendered in the justice court, and whether or not, under such circumstances, the judgment rendered in the circuit court on the amended complaint constituted a valid judgment.
There was no separate assignment of errors, but there are four points separately stated under "Points and Authorities." The first point contains a clear statement of the contention of the plaintiff in error that the amended complaint stated an entirely distinct cause of action from that stated in the original complaint filed in the justice court, and, for that reason, the circuit court had no jurisdiction to enter judgment on a cause of action different from that sued upon in the justice court. In support of that point, an authority directly bearing upon that contention is cited. This was actually the only point in the case in view of the absence of any bill of exceptions.
Neither of the first two grounds of the motion to dismiss can be sustained.
The third ground of this motion to dismiss presents a clear violation or our Rule 30, in that there is no index whatever contained in the abstract of the record. Plaintiff in error concedes his failure to include any index, but suggests that the penalty of the dismissal should not be inflicted in view of the brevity of the abstract of the record "consisting of nineteen pages of our twenty-seven page printed volume containing with said abstract eight pages of our statement, points and authorities and argument."
Rule thirteen of the Supreme Court of Missouri makes the same requirement with respect to the inclusion of an index to the abstract of the record as does our rule 30. In construing its Rule 13, the Supreme Court has held in State ex inf. Barrett v. Parrish, 307 Mo. 455, l.c. 460, 270 S.W. 688, l.c. 690, that:
"This rule is mandatory in its terms and, unless complied with, warrants the court in dismissing the appeal."
In Payne v. Payne, 338 Mo. 224, the point was there made, as is made here, that in view of the brevity of the abstract, the court would not be warranted in enforcing the penalty prescribed for failure to include an index. In passing upon this question, the court held:
"To hold in such situation (referring to an abstract of twenty-seven pages) that our rules may be ignored because the abstract in the instant case happens not to be very long would be but to encourage laxity in the observance of our rules by our own laxity and uncertainty in the enforcement of them. If the rule is not to be enforced as written, where should the line be drawn? How voluminous and complicated must a record be in order that the abstract thereof must be indexed, under the rule?
"`Rules of court are made for the guidance of litigants and for the purpose of facilitating and expediting the business of the court.' [State ex rel. Consol. School Dist. etc. v. Cox, 323 Mo. 43, 18 S.W.2d 61, (3).] Reasonable observance thereof by litigants and adherence thereto by this court are necessary to the proper and expeditious disposal of the business of the court. Respondents' motion to dismiss is good unless we ignore our rules. While we dislike disposing of cases in this manner we feel constrained to do so in this case. The appeal is dismissed."
In bank of Kennett v. Tatum, 340 Mo. 198, the Supreme Court, in sustaining a motion to dismiss an appeal because of the failure of the abstract to include an index, said (l.c. 200):
"While we are loath to dispose of an appeal in this manner and to repeal our rules than to annul them by construction. So long as they remain in force the opposing litigant has rights to their resonable enforcement which cannot be ignored."
We think the rulings of the Supreme Court in the foregoing cases sound. While this court has frequently announced that our rules are to be liberally construed (Myers v. Union Electric Light Power Co., 125 S.W.2d 950), the question of the construction of our Rule 30 is not here involved. The rule provides that "the abstract mentioned in Rule 15 shall have a complete index at the end thereof." There is no question here as to the sufficiency of the index therein required. Here there is no index. To refuse to apply the penalty of dismissal for failure to include an index would not involve a liberal construction of the rule, but would merely mean that we had in this case elected to ignore the rule.
While we much regret the necessity of disposing of a case in this manner, we nevertheless feel that the avoidance of a precedent that would leave a court free to ignore or recognize a rule as it might, under the particular circumstances, see fit, is of more importance than the determination of this case upon its merits.
The writ of error is dismissed. All concur.