Opinion
May 4, 1942.
1. — Appeal and Error. Where on appeal the assignments do not set out the reasons for the objection, to erroneous admission of testimony, the substance of the testimony alleged to have been improperly admitted, any indication how plaintiff was injured thereby, or the page or pages of the record where such testimony is to be found, they present nothing for review by the appellate court.
2. — Appeal and Error. It is not within the province of the appellate court, on writ of error, to pass on question of whether the verdict was against the weight of the evidence.
3. — Appeal and Error. Where at the close of all the evidence it was agreed, in open court, by plaintiff and defendants, that the cause be submitted to the jury without any instructions of law, plaintiff is not in position on appeal to claim that the court erred in not giving peremptory instruction and that the evidence fails to make an issue to be submitted to the jury.
4. — Appeal and Error — Courts. Rules and statutes relating to appeals and writs of error are designed for the purpose of promoting intelligent administration of justice and to guard against the disturbance of nisi prius judgments except upon a full and fair presentation of the whole record necessary to a determination of errors properly presented.
5. — Appeal and Error. Where writ of error presented no errors properly preserved and presented to appellate court for review, under rules of Court of Appeals writ of error should be dismissed.
Error to Circuit Court of Jackson County. — Hon. Marion D. Waltner, Judge.
WRIT OF ERROR DISMISSED.
Horace Merritt, W.C. Meyer and Elmer W. Ahmann for plaintiff in error.
(1) Under the statutory law of Missouri the defendant Walter D. Thomas was disqualified and prohibited from testifying. See Section 1723, Revised Statutes of 1929, Section 1887 in Revised Statutes of 1939. (2) J. Doyle Barrow would have been barred by the statute from testifying. Donnell Newspaper Co. v. Jung, 81 Mo. App. 577; Green v. Ditsch, 143 Mo. 1; Brim v. Fleming, 135 Mo. 605; Banking House v. Rood, 132 Mo. 256. By the affidavit of J. Doyle Barrow accompanying the motion for new trial he would be incompetent to testify under the statute. Taylor v. George, 176 Mo. App. 215; Elsea v. Smith, 273 Mo. 396, 202 S.W. 107. (3) In an action on promissory note the defendants makers of the notes were not competent witnesses to testify to a settlement whereby the indebtedness represented by the note was canceled where the party with whom settlement was made was dead at the time of the trial. Columbia Brewery Co. v. Bohling et al., 133 Mo. App. 65. (4) Deed offered in evidence as defendant's Exhibit C was incompetent. Where one's oral testimony would be incompetent his declarations in his deed are likewise incompetent. Land v. Goodno, 181 S.W. 410. (5) Defendants plead and over objections of plaintiff were permitted to testify as to failure of consideration which after death of payee they are not competent to testify to failure of consideration nor as to release of the note or its payment. Hisaw v. Sigler, 68 Mo. 449; Welland v. Welland, 64 Mo. 168; Farmers Trader's Bank v. Kendrick, 341 Mo. 571, 578; Roethemeir v. Veith, 334 Mo. 1030, 69 S.W.2d 930.
Chet D. Vance, Frank J. Strak and W. Raleigh Gough for defendants in error.
(1) No reversible error appears as to the rulinge of the trial court in admitting evidence. (a) Plaintiff-in-error's assignments on this point are too indefinite for review by this court. Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960; Metropolitan Properties Co. v. Rideout, 346 Mo. 787, 142 S.W.2d 1055. (b) Plaintiff waived the incompetency of defendant to testify as to transactions with George P. Cook, by allowing him to testify to such transactions without objection. Norvell v. Cooper, 155 Mo. App. 445, 452, 134 S.W. 1095, 1097; Peoples Bank of Queen City v. Aetna Cas. Co., 225 Mo. App. 1113, 40 S.W.2d 535, 542 (15); 70 C.J. 371, sec. 488. (c) Defendants laid a sufficient foundation, by proof of Barrow's agency for Cook, to introduce testimony as to transactions with Barrow, as Cook's agent. 3 C.J.S. 281-282, sec. 322 e and f, 300, sec. 328 b; Miller v. Wilson, 126 Mo. 48, 28 S.W. 640; Gibson v. Zeibig, 24 Mo. App. 65; Renick v. Brooke (Mo. App.), 190 S.W. 641. Where there is testimony tending, prima facie, to prove agency, even the agent's declarations are admissible, with the other testimony, to prove agency. John P. Mills, etc. v. Bell, 225 Mo. App. 685, 37 S.W.2d 680; Gillis v. Singer, 86 S.W.2d 352. Having established a prima facie case of agency, defendant was entitled to introduced evidence as to transactions between himself and Barrow, as Cook's agent, Cook's death not affecting the competency of such testimony. Miller v. Wilson, 126 Mo. 48, 28 S.W. 640; McClure v. Clements, 161 Mo. App. 23, 143 S.W. 82; Orr v. Rode, 101 Mo. 387, 13 S.W. 1066. (2) Plaintiff cannot be heard on this review to claim that there was no sufficient evidence to justify a verdict for defendants, because he offered no peremptory instruction and joined in submitting the issues to the jury. Swift Co. v. Epps (Mo. App.), 182 S.W. 1024; Hodges v. Ramsay (Mo. App.), 216 S.W. 568; People's Bank of Queen City v. Etna Cas. Co. (Mo. App.), 40 S.W.2d 535, 540-541. (3) The evidence was sufficient to present a jury question, and the verdict for defendants is supported by the evidence.
This is an action by plaintiff in error (as plaintiff) against defendants in error (as defendants) upon eleven promissory notes, in amounts approximating $40 each. Trial to a jury resulted in a verdict and judgment for defendants, and plaintiff in error seeks review of the proceedings by writ of error. The petition is in conventional form in eleven counts. The amended answer, upon which the case was tried, admits the execution of the notes and pleads as defenses (a) that the notes were procured by certain fraudulent representations; (b) that the notes have been fully discharged and satisfied by tender of a warranty deed which was accepted by plaintiff.
At the outset we are confronted with a motion to dismiss the writ of error issued herein because the statement and assignments of error and points and authorities of plaintiff in error do not comply with our rules 15, 16 and 17 and are wholly inadequate to present any error for review by this court.
The assignments of error are as follows:
"1. The court erred in overruling the objections made by the plaintiff to the defendant Walter D. Thomas testifying as a witness in his own behalf as to transactions and conversations with the deceased plaintiff George P. Cook.
"2. The court erred in permitting the defendant to testify to conversations and transactions with J. Doyle Barrow as the agent of the deceased George P. Cook, and in overruling objections made thereto by the plaintiff, there being no evidence or proof whatever that said J. Doyle Barrow was the agent of George P. Cook.
"3. The verdict of the jury upon each and every count of the petition against the plaintiff and in favor of the defendant is against all the evidence and against the law, and the court erred in not so holding.
"4. The verdict of the jury is not supported by any evidence whatever, but is against the evidence of the defendant Walter D. Thomas who over the objections of the plaintiff was permitted to testify to transactions with the deceased George P. Cook and even under his incompetent evidence he himself swore that the deed which he had requested drawn for him by J. Doyle Barrow and which he had sent to Barrow was returned to him and therefore was never accepted by either Cook or Barrow thereby proving by his own testimony that no payment or discharge of said notes had ever been made by him, and the court erred in not so holding in refusing to set aside the verdict and grant new trial upon the hearing of the motion for new trial of said cause."
The first two assignments relate to the erroneous admission of testimony. These two assignments are wholly inadequate and are not aided by the "points and authorities" or the argument found in the brief. The assignments do not set out the reasons for the objection, the substance of the testimony alleged to have been improperly admitted, any indication how plaintiff was injured thereby, or the page or pages of the record where such testimony is to be found. Failure so to do has many times been held to present nothing for review by the appellate court. [Wheeler v. Campbell, 120 S.W.2d 744; Martin v. Connor, 128 S.W.2d 309; McGee v. St. Joseph Belt Ry. Co., 93 S.W.2d 1111; Metropolitan Properties Co. v. Rideout, 142 S.W.2d 1055; Martin v. Bulgin, 111 S.W.2d 963.] In the case of Diamant v. Stein, 116 S.W.2d 273, this court, in an opinion by REYNOLDS, J., discusses at length the essentials of assignments of error and we refer those interested to that opinion for a full discussion and collection of authorities on the subject.
The third and fourth assignments of error might be construed to charge that the verdict of the jury was against the evidence and against the law under the evidence, and that the court should have directed a verdict for plaintiff on all counts of the petition. Of course, we will not pass on the question of whether the verdict was against the weight of the evidence as it is not within the province of the appellate court so to do. With reference to the assignment (if it may be so construed) that the verdict was against the law and the evidence, we find by examining the motion for new trial that the only point made therein, which would relate to the above assignments of error, is that the "court erred in overruling the peremptory instruction offered by plaintiff at the close of the defendants' case;" but a further examination of the record discloses that no such peremptory instruction was offered and, therefore, none was refused by the court. On the contrary, the record discloses that at the close of all the evidence it was agreed, in open court, by plaintiff and defendants, that the cause should be submitted to the jury without any instructions of law, except the form of verdict. Under such circumstances, the plaintiff is not now in position to claim that the court erred in not giving the peremptory instruction, when none was offered, and that the evidence fails to make an issue to be submitted to the jury. [Swift Co. v. Epps, 182 S.W. 1024; Hodges v. Ramsay, 216 S.W. 568; People's Bank of Queen City v. Aetna Cas. Co., 40 S.W.2d 535.]
We are always loathe to dismiss a cause pending in this court but our rules and statutes relating to appeals and writs of error are designed for the purpose of promoting intelligent administration of justice and are intended to aid this court in dispatching its work and arriving at a proper understanding of the issues; and, in addition, they are designed to guard against the disturbance of nisi pruis judgments except upon a full and fair presentation of the whole record, necessary to a determination of errors properly presented. [Metropolitan Properties Co. v. Rideout, supra.] Such has not been done in the instant case.
Finding no errors properly preserved and presented to this court for review, it follows that under our rule 18 the writ of error should be dismissed. It is so ordered.
All concur.