Opinion
No. 21740.
June 2, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, RAY G. COWAN, J.
Gresham, Hizer Boughan, Walter J. Gresham, Kansas City, for appellants.
Cortner Beals, Perry M. Cortner, Dwight Beals, Kansas City, for respondents.
Robert L. Williamson and Van D. Williamson brought this suit to partition certain personal property described as follows: "One crankshaft grinding machine; one boring bar; one align boring machine; one micro-finishing machine; one air compressor; one rod boring machine; one half-inch drill; one quarter-inch drill; one valve refacing machine; one Turbo-Blast cleaning machine; one lot of appliances, attachments and supplementary tools owned and used in connection with the aforesaid machinery." The defendants are Max Glessner and Winfield Williamson.
The petition alleges that plaintiffs are the joint owners of the personal property above described; that "defendant, Winfield Williamson, has or claims some title or interest therein, the exact nature of which plaintiffs are unable to describe; that defendant Max Glessner claims some right or title thereto which he derived from defendant Winfield Williamson"; that defendant Williamson wrongfully took possession of said property and "placed some in the possession and control of defendant, Max Glessner, to the exclusion of plaintiffs, and said defendants have been using said property for their joint profit solely since September, 1950, and in equity and good conscience are indebted to plaintiffs for the reasonable value of the use of said personalty for said purpose; that plaintiffs have good reason to believe, and do believe that defendants have disposed of parts of said personalty to persons unknown to plaintiffs, and are about to sell said property or parts thereof, and to remove same from the state unless restrained from so doing, to the irreparable loss of plaintiffs in respect to their ownership and rights therein. * * *;" that "partition in kind cannot be made without great prejudice to the owners thereof and that the same should be ordered sold by the sheriff and the proceeds thereof divided among the parties in accordance with their respective interests"; that "whatever right, title, interest or claim defendants may be found by the court to have, same is less than the amounts with which they should be charged for the value and use of the aforesaid property since they have excluded plaintiffs from the possession and profits therefrom. * * *." The prayer of the petition is "for an order of court for partition of said property, that same be sold according to law and the proceeds divided, that defendants be required to make accounting, that they be enjoined from disposing of or removing moving said personalty from Kansas City, that they be charged with the reasonable value of the use and profits therefor, that the court make such other and further orders as may be proper, including a reasonable sum for plaintiffs' attorneys fees, and for their costs."
The separate answer of defendant Glessner was a general denial. Defendant Williamson filed an answer and counterclaim. In his answer he denies that plaintiffs are the joint owners of the property in question, and alleges "that this defendant and said plaintiffs were partners by a certain agreement whereby this defendant and plaintiffs agreed that this defendant would use his knowledge, skill and influence in obtaining customers, having heretofore been in a like and similar business in Kansas City, Missouri, and to have the use of a part of the personal property" described above; "to-wit: one boring bar, one align boring machine, one half-inch drill, one quarter-inch drill, one valve refacing machine, one lot of appliances, attachments and supplementary tools"; that "plaintiffs were to and did invest approximately $2,000.00 in cash for the purpose of going into the business venture as a partnership, and that the plaintiffs herein were to be and remain silent partners, to share in the net profit and losses, and that this defendant was to be the exclusive manager, and that in pursuance to such agreement this defendant and plaintiff Van D. Williamson purchased one crankshaft grinding machine, one micro-finishing machine and one Turbo-Blast cleaning machine, made a down payment on said machinery, and this defendant gave a purchase price mortgage back on said machinery"; that "this defendant * * * thereafter with his own funds purchased one air compressor and one rod boring machine, and that all of the above mentioned machinery was placed in said place of business, and that it was expressly understood that the machinery first above mentioned were always to be the separate property of this defendant." He asked that the court dismiss the plaintiffs' petition.
For his counterclaim, defendant Williamson alleges that said business was operating at a loss and was insolvent and that he and plaintiffs "agreed to salvage as much as possible and to pay the creditors and to go out of business"; that pursuant to said agreement he "did wind up the affairs of the partnership so far as was possible, and that he sold the equity in the crankshaft grinding machine and the micro-finishing machine on an agreement that the purchaser thereof relieve him from further liability on the note and mortgage on said two articles, together with a Turbo-Blast cleaning machine which was also in said note, and that said purchaser would relieve him of further liability on said three machines, and turned the Turbo-Blast cleaning machine back to this defendant as full consideration for said sale;" that "this defendant at that time had said Turbo-Blast machine sold for $250.00, * * * and that this defendant in pursuance of said agreement with said plaintiffs as his partners paid said $250.00 received on said sale agreement on the bills and obligations of this partnership; that this defendant also sold the air compressor and the rod boring machine so purchased with his own funds and applied the proceeds thereof on the debts of the partnership; that after said partnership business was fully closed there still remained obligations in the sum of approximately $375.00, and that this defendant is paying and has paid said obligations, and therefore this defendant is entitled to contribution from said former partners the plaintiffs herein, for two-thirds of $375.00, or $250.00, for which he prays judgment against the plaintiffs and each of them."
The case was tried by the court without the aid of a jury. The final judgment is as follows: "It is therefore ordered, adjudged and decreed that plaintiffs take nothing on their cause of action and defendant on their cause of action and defendant Winfield Williamson take nothing on his cross-petition and the costs are assessed against the plaintiffs." Plaintiffs have appealed.
We are confronted at the outset with defendants' motion to dismiss the appeal for the reason that plaintiffs' brief does not comply with Rule 1.08, and for other reasons. This motion was taken and submitted with the case.
Rule 1.08 provides that the brief for appellant shall contain: "(1) A concise statement of the grounds on which the jurisdiction of the review court is invoked; (2) A fair and concise statement of the facts without argument; (3) The points relied on, which shall specify the allegations of error, with citation of authorities thereunder; * * * and (4) An argument."
Under plaintiffs' "Points and Authorities," we find the following: "The Judgment is Contrary to Both Law and Facts. A. Upon termination of the partnership (Tr. 89), the members became tenants in common of the machinery admittedly bought as partners (Tr. 92). B. As tenants in common, plaintiffs had a statutory right to partition the personalty previously owned by the partners. C. Defendant Glessner by answer denied any interest in the machinery (Tr. 3), testified that he purchased nothing from Winfield Williamson, and paid no one anything for the equity in the machinery (Tr. 8, 66-67)." Each of the subheads marked A, B, and C is followed by the citation of cases and reference is made to Section 528.620 RSMo 1949, V.A.M.S.
Referring to the statement that "the judgment is contrary to both law and facts," it has been held repeatedly that such an allegation is indefinite and, standing alone, is insufficient to present any matter for appellate review. Matthews v. Karnes, 320 Mo. 962, 972, 9 S.W.2d 628, 631; Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d 606, 612; State ex rel. Rose v. City of Webb City, Mo.App., 74 S.W.2d 45, 46. This is so well settled that it is needless to cite other cases so holding. The general statements under subheads A, B, and C cannot be considered as allegations of error, or as statements enlightening the court as to what errors plaintiffs seek to raise by the indefinite assignment that "the judgment is contrary to both law and facts."
Under the heading "Brief and Argument," plaintiffs refer to certain testimony in the transcript and make certain statements which are difficult to understand. For instance, plaintiffs say, "The suggestion was also advanced by Glessner that all of this was done by Sterling Bearing, Inc., (Tr. 62), and that this was a corporation `since 1946' (Tr. 56). But he offered no evidence that the corporation was authorized to do business under Section 351.070, RSMo 1949 [V.A.M.S.], or that it had paid the annual registration fee required by Section 351.125." The fact that defendant Glessner did not offer such evidence bears no perceptible relation to any of the issues raised by the pleadings. Plaintiffs also state in their "argument" that "Notwithstanding the fact that Glessner refused to agree to surrender the machinery on equitable terms (Tr. 81), plaintiffs are willing to reimburse him for all he had paid on the machinery. In turn, they are equitably entitled to have him charged with the reasonable value of the use of the machinery. The trial court limited the evidence on that issue to testimony that the machine was capable of producing $150.00 per day (Tr. 20). That is not the proper measure, because it does not take into consideration the cost of manpower and other items of operating expense. That evidence may be furnished before time for distribution of the proceeds." The transcript shows that plaintiffs offered testimony to prove that "the machine was capable of producing $150.00 per day" and that such testimony was admitted over defendants' objection. If plaintiffs mean to say that such testimony was inadmissible, they are in no position to complain. Obviously, the fact that plaintiffs are willing to reimburse defendant Glessner "for all he had paid on the machinery" does not show that the trial court committed any errors. It is impossible to ascertain from plaintiffs' brief what question plaintiffs wish to present for our determination.
Plaintiffs' brief is deficient in other respects. We have read the entire transcript as well as the statute and cases cited in plaintiffs' brief. The facts in those cases are unlike those in the case at bar. Assuming that some of the principles or rules stated in the cases cited are applicable here, it is clear that the instant case involves numerous points which plaintiffs have not briefed. We understand, of course, that the Civil Code and rules adopted since its passage permit the appellate courts some latitude in refusing to dispose of cases upon technical considerations and that Rule 1.08 should be given a liberal interpretation. Here, however, it would be impossible for us to dispose of the case on the merits without making a careful investigation of the law relating to all of the points involved in the case, but which are not raised or briefed by plaintiffs. Under these circumstances, we feel constrained to hold that the appeal should be dismissed for failure to comply with Rule 1.08(a), (3).
SPERRY, C., concurs.
The foregoing opinion of BOUR, C., is adopted as the opinion of the court. The appeal is dismissed.
All concur.