Opinion
No. 42625.
April 14, 1952. Motion for Rehearing or to Transfer to Court en Banc Denied May 12, 1952.
APPEAL FROM THE CIRCUIT COURT, BUCHANAN COUNTY, SAM WILCOX, J.
Earl C. Borchers, St. Joseph, for appellant.
Arthur Abraham, Chicago, Ill., Brown, Douglas Brown, R. L. Douglas, Watkins Watkins and O. W. Watkins, Jr., all of St. Joseph, for respondents.
In the circuit court of Buchanan County appellant filed this action to enforce specific performance of an alleged oral contract with Anna K. Craig, deceased. The trial court sustained respondents' motion to dismiss this action for the reason that these issues had been adjudicated in an action filed in the Superior Court of Cook County, Illinois.
This case will be referred to as the Buchanan County case and the case filed and decided in the Superior Court of Cook County, Illinois as the Cook County case. The Cook County petition alleged that Anna K. Craig was a single woman, possessed of divers real estate and personal property in the states of Missouri, Kansas, Oklahoma and Illinois; that she agreed to give, devise and bequeath or otherwise convey, at the time of her death, all of her property to appellant in consideration for his services theretofore rendered and thereafter rendered to her for the upkeep and maintenance of all her properties, the renting and leasing thereof, and other things, which meant the general supervision of all her properties. The petition further alleged that the appellant had fully performed the services under the oral contract and that Anna K. Craig had breached the oral contract by making two wills, one dated December 21, 1946, under the terms of which the appellant received nothing, and one dated June 30, 1947, under the terms of which appellant received $1,000 as a legatee; that the last will was admitted to probate; and that Anna K. Craig died in Chicago, Illinois on September 3, 1947. The defendants in that case are the domiciliary executor and the residuary beneficiary who received most of her property under her will.
The petition in the Buchanan County case is almost identical with that in the Cook County case; in fact, the prayer in each is word for word identical. The parties in the Buchanan County case are the same as those in the Cook County case and in addition thereto appellant has joined all the beneficiaries and the heirs at law of Anna K. Craig.
In the Cook County case and the Buchanan County case the respondents' answers denied the contract and also pleaded laches and the statute of frauds. In the Cook County case respondent Mattalina filed a counterclaim against this appellant, asking the court to determine that appellant had no title to the Illinois property or to the proceeds of the estate of Anna K. Craig, deceased, either real, personal or mixed, and to set aside the appellant's claim.
The Cook County case was referred to a Master in Chancery who duly filed his report. The appellant filed his objections to the master's report. On October 4, 1950 the Superior Court of Cook County entered its decree approving and confirming the master's report and finding and decreeing specifically that it had full and complete jurisdiction of the subject matter of the cause and all the parties thereto; that Arthur Clark, this appellant, had performed services for Anna Craig during her lifetime but had been fully paid for his services; that there was no such contract as alleged between this appellant and Anna K. Craig; that the last will and testament of Anna Craig was valid; and that appellant's petition should be dismissed for the want of equity at his costs.
The decree proper is as follows:
"It Is, Therefore, Ordered, Adjudged and Decreed:
"(a) That the Complaint and Petition of Arthur Clark, Plaintiff, be and the same is hereby dismissed for want of equity.
"(b) That Plaintiff, Arthur Clark, never at any time or place whatsoever, had any agreement, contract, or arrangement with Anna Craig (sometimes known as Anna K. Craig) by which said Anna Craig ever agreed, contracted, arranged, or undertook to give, devise, bequeath, transfer, convey, or set over unto said Arthur Clark either at the death of said Anna Craig (sometimes known as Anna K. Craig) or at any other time, all or any part of the property of Anna Craig (sometimes known as Anna K. Craig) either real, personal, or mixed.
"(c) That Plaintiff and Counter Defendant, Arthur Clark, has no right, title or interest of any kind, character or description whatsoever in or to the proceeds of the Estate of Anna Craig (sometimes known as Anna K. Craig), Deceased, either real, personal or mixed.
"(d) That the claim of Counter Defendant, Arthur Clark, set out in his Complaint and Petition is hereby expressly set aside and removed as a cloud upon the title of Defendant and Counterclaimant, James Mattalina, in or to the real estate of said Anna Craig (sometimes known as Anna K. Craig), located in Cook County, Illinois, and above described.
"(e) That the Plaintiff and Counter Defendant, Arthur Clark, is directed to pay to Counterclaimant and Defendant, James Mattalina, his taxed costs in the sum of $940.00, and that Counterclaimant and Defendant, James Mattalina, have and recover of and from said Counter Defendant and Plaintiff, Arthur Clark, his said taxed costs and that execution issue therefor, but without prejudice to all other remedies in equity for the recovery thereof.
"Enter:
"Jose Gurber
"Judge"
After the decree was entered in the Cook County case, the respondents filed a motion to dismiss appellant's petition in the Buchanan County case on the grounds that the matters and issues attempted to be alleged by appellant were decided adversely to appellant in the Cook County case and, therefore, appellant was estopped to again try the same issues for the reason that the Cook County decree was res judicata and conclusive as to every issue between the parties.
At the hearing of this motion to dismiss, respondents introduced in evidence a duly authenticated transcript of the proceedings of the Cook County case. On April 7, 1951 the trial court sustained respondents' motion to dismiss. It is from this order that this appeal was taken.
The appellant's brief contains no assignments of error. Under what is designated "Points and Authorities" certain abstract propositions of law are stated but without in any way showing their applicability to the case at bar so that the brief is devoid of any statement of the points relied on. It does not specify the allegations of error as required by our rule 1.08, which reads in part:
"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; provided, however, if more than three authorities are cited in support of a point made, the three authorities principally relied on shall be cited first; and (4) An argument."
We are left without sufficient information on which to proceed. There is no question before us for review. Walker v. Allebach, 354 Mo. 298, 189 S.W.2d 282.
The appeal should be dismissed. It is so ordered.
All concur.