Wilds v. German Insurance , 1896 Mo. App. LEXIS 149 ( 1896 )

OPINION ON MOTION TO DISMISS APPEAL.

Gill, J.

This is a suit in equity, brought to satisfy and cancel a certain deed of trust covering plaintiff’s real estate. After a somewhat lengthy trial, the •court below entered a decree in plaintiff’s favor, and defendant has appealed.

We have before us now a motion by respondent to •dismiss the appeal on the alleged ground that the appellant has failed to file such an abstract of the record as is required by rule 15 of this court. The motion to dismiss the appeal must be overruled. The appellant has filed here a printed document intended as an abstract, and while it is quite deficient in most respects, it yet furnishes sufficient matter for the determination of one question raised in its brief. Under the head of “Points and Authorities,” the first point made is that the petition fails to state a cause of action. On looking back at the abstract we find an alleged copy of the petition, together with an objection by the defendant to the introduction of any evidence'thereon, interposed at the trial; that the objection was overruled, and an exception taken to the court’s ruling. Motions for new trial and in arrest are also copied in the abstract, and in both the court’s attention was again called to its alleged erroneous ruling on the admission of any evidence on the petition; and these are overruled and exceptions noted. So, then, it clearly appears that we have before us in this abstract enough to call for our judgment as to the sufficiency of the petition. But this is all — the abstract presents no other question for our determination. It altogether fails to disclose the evidence adduced at the trial in the circuit court. Respondent’s counsel point out the many and very substantial defects of the abstract. The testimony of quite all the witnesses at the trial is either omitted entirely, or merely referred to in some general language, accompanied by citations to pages in the transcript. Eifty-five pages of closely typewritten evidence is reduced in the abstract to less than five pages. The so-called abstract of the evidence is shown upon face to be far short of what is required to a complete understanding of the case.

In reviewing these equity cases, we must have the entire evidence. We are required to go over and consider the whole of the testimony so as to determine the error or correctness of the judgment below. It is here what may be termed another trial on the facts. How can we put ourselves in the same position as the lower court, unless we have before us the same evidence? And we try the case on the abstract, not on the transcript. Case after case has been written up by the appellate courts of the state reminding attorneys of this rule. See Trimble v. Wollman, 62 Mo. App. 541, and authorities cited.

While, then, we shall overrule the motion to dismiss the appeal, the case will be retained simply to determine the one point sufficiently abstracted, to wit: does the petition state facts sufficient to constitute a cause of action?

Motion overruled.

All concur.