Bryan v. Bryan

435 S.W.2d 745, 1968 Mo. App. LEXIS 552
CourtMissouri Court of Appeals
DecidedDecember 17, 1968
DocketNo. 32927
StatusPublished
Cited by5 cases

This text of 435 S.W.2d 745 (Bryan v. Bryan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bryan v. Bryan, 435 S.W.2d 745, 1968 Mo. App. LEXIS 552 (Mo. Ct. App. 1968).

Opinion

LACKLAND H. BLOOM, Special Commissioner.

This appeal arises out of a divorce action filed by plaintiff against defendant. Defendant filed an answer and cross bill in which he sought a divorce in Count I and in Count II sought a decree declaring that he held an equitable interest in a farm owned by plaintiff and a one-half interest in certain stock, a one-half interest in a one-third share in the Irondale Insurance Company standing in plaintiff’s name and a one-half interest in other designated personal property held by plaintiff. A trial was had before the court without a jury on all issues raised. The court entered a decree of divorce in plaintiff’s favor on her petition and against defendant on Count I of his cross bill.

The court entered its decree and judgment in defendant’s favor on Count II of his cross bill and adjudged and decreed that plaintiff and defendant were owners of a one-half interest in a certain Cadillac automobile, in a certain one-third share interest in the Irondale Insurance Agency, in ten shares of stock of the Bank of Irondale, in a certain manure spreader, chain saw, Choremaster, seed drill, pick-up truck, twin bedroom suite, TV-Stereo, davenport and air conditioner. It also decreed that defendant has an equitable interest in the sum of $7,236.32 in the farm owned by plaintiff.1

Plaintiff has appealed to this court from the “judgment on the cross bill,” by which we presume plaintiff is referring to the judgment on Count II of the cross bill. Accordingly the propriety of the judgment in plaintiff’s favor for divorce is not before us.

We have, with some difficulty, prepared from the conflicting testimony summarized in appellant’s brief and aided by respondent’s brief and the transcript a statement of facts sufficient for our purpose.

Plaintiff and defendant were married on January 3, 1956, and separated on May 10, 1966. At the time of her marriage plaintiff owned a one-half interest in a 327 acre farm situated in Washington County which she had inherited from her father. After her marriage to defendant she purchased her sister’s one-half interest for $6,000.00 from funds which her father had left her. She also owned stocks consisting of 140 shares of Standard Oil, 50 shares of Chase Candy, 20 shares of Bank of Irondale, 1200 shares of St. Louis Wholesale Drug Co., and 5 shares of Delaware Punch. Farm machinery owned by plaintiff consisted of a tractor, disc, plow, mower and wagon. She also owned all the household furnishings in the house on the farm and owned some cattle, although there was a conflict in the testimony as to how many head. Plaintiff testified she owned 15 head while defendant testified she had five head and that defendant purchased additional cattle with his own funds.

Defendant at the time of the marriage had $7,000.00 in Moloney Electric Credit Union, $1,700.00 in an account at Bonne Terre Bank, 400 shares of American Investment Company and government bonds valued at $600.00.

Shortly after their marriage plaintiff and defendant opened a joint bank account and thereafter everything was paid for out of that account. Defendant was working in St. Louis at Moloney Electric Company at the time of the marriage earning between five and six thousand dollars a year until he [747]*747suffered a heart attack in October 1962. He has been unable to work since. The 400 shares of American Investment stock were transferred by defendant after the marriage into the joint names of plaintiff and defendant.

Sometime during 1959 plaintiff purchased a one-third interest in the Irondale Insurance Agency for a total sum of $3,450.00. Both plaintiff and defendant gave a note to the Irondale Bank for part of the purchase price. Plaintiff worked at the agency and received $100.00 a month which was applied in payment of the note. Defendant testified that money received from the sale of cattle was also applied on the note. He testified that at the time the interest in the insurance agency was purchased he discussed the purchase with plaintiff and it was agreed that it was to be owned together and defendant could run it when he retired. Plaintiff denied any such conversation or agreement. Defendant said that the 400 shares of American Investment Company stock was pledged as security for the note. The money from the bank on the loan was deposited in the joint account and the check for purchase of the insurance agency was drawn on the joint account.

After the marriage plaintiff and defendant conducted the farm as a joint operation. Defendant purchased some cattle to be added to the cattle plaintiff had on the farm. Defendant testified that he worked on the farm on weekends until his heart attack. After the marriage seventy acres of permanent pasture were added, part of the farm was fenced and terraced, the tenant house was repaired and remodeled, a new barn was built; all of which was paid for out of the joint account. The parties purchased a new Cadillac, trading in a Dodge previously purchased by them as part payment, paying the balance from funds in the joint account. Plaintiff testified that the Cadillac was partly paid for by funds earned by her from employment at Bonne Terre Hospital. They also purchased from joint funds a pick-up truck, a Choremaster, seed drill and a chain saw. The plaintiff also purchased ten additional shares of stock in the Irondale Bank. Plaintiff and defendant signed a note for the purchase price which note was paid off from the joint account. The parties bought a television set, bedroom set, stereo, davenport and other household furnishings from joint funds. We do not believe it necessary to detail further the extensive testimony elicited at the trial.

We are met at the outset with a motion of respondent to dismiss this appeal for failure of appellant to comply with our rules. Reluctant as this court is to dismiss an appeal for violation of its rules, we believe the motion is proper and must be sustained on the grounds set forth as well as others not expressly stated by respondent.

Respondent first states that appellant has not complied with Rule 83.05(c) V.A.M.R. in that the appellant’s brief does not contain a fair and concise statement of the facts relevant to the questions presented for determination in the form required by that rule. Respondent properly points out that the appellant has merely narrated the testimony of each witness. We find appellant has provided us with twenty-four pages setting forth the testimony of each witness. As a result this court is not presented with a concise factual statement in any intelligible or coherent form. We are left to search the briefs and the transcript and reconstruct a workable statement of facts. This an appellate court should not, under our rules, be required to do. The testimony as presented by appellant is nothing more than a synopsis of the transcript— disjointed, illogical and piecemeal. As we stated in Triplett v. Wyatt, Mo.App., 360 S.W.2d 386, 387, a statement of facts merely setting forth a digest of the pleadings and the testimony of each witness is not a compliance with Rule 83.05(c), “although the proper form of statement may be followed by a statement of the testimony of each witness, if desired.” In Weathers v. Falstaff Brewing Corporation, Mo.App., 403 S.W.2d 663, 665, a case in which we [748]

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Bluebook (online)
435 S.W.2d 745, 1968 Mo. App. LEXIS 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bryan-v-bryan-moctapp-1968.