Goodson v. Wabash, St. Louis & Pacific Railway Co.

23 Mo. App. 76, 1886 Mo. App. LEXIS 13

• Court: Missouri Court of Appeals
• Decided: June 28, 1886
• Status: Published

Opinion

Halu, J.

The appellant seeks a reversal of the judgment in this case, and assigns therefor two reasons. (1) That the evidence totally failed to show that the delay complained of in the petition was caused by the negligence of the defendant. (2) That the court erred in refusing to give the third instruction asked by the appellant, because, by the terms of the contract, in case of even negligent delay, the recovery was limited to the amount expended for food and water.

Rule fifteen of this court provides that “in ali cases the appellant or plaintiff in error shall file with the clerk of this court, on or before the day next preceding the day on which the cause is docketed for hearing, five copies of a printed abstract or abridgment of the record in said cause, setting forth so much thereof as is necessary to a full understanding of all the questions presented to this court for decision * *

Does the abstract or abridgment of the record, so called, filed by the appellant in this case comply with the requirements of that rule ?

Those requirements are obligatory and binding, as we have frequently held (See Foster v. Trimble, 18 Mo. App. 394), and unless the appellant has complied with them his appeal will be dismissed.

The rule requires that every part of the transcript -relied upon as error, and all that is necessary to show it .such, must be printed in the abstract. The object of the' rule is that we may be able to treat the appellant’s ■.abstract, unless the respondent shall file a counter--.abstract, as the record itself, and, in this way be saved •.the time and trouble necessary for an examination of' the transcript.

Where no point is made on the pleadings the effect of the pleadings may be stated in the abstract, and that will be sufficient. And so where no point is made as to1 the sufficiency of the evidence it will be sufficient to set forth in the abstract the tendency of the evidence.

But the first point made in this case is that the evidence was insufficient to prove negligence on the part of the defendant as charged in the petition. The appellant should have set out in his abstract, in Tiaeo verba, so much of the transcript as contained all the evidence on that question. Without such an abstract we are unable to say what was the evidence or what was its effect, unless we examine the transcript. The appellant in his abstract has not pretended to set out the evidence as contained in the transcript in the words used in the transcript. The appellant has simply set out in the abstract his version of the evi-' dence, that is to say, what the effect or meaning of the evidence was in his opinion. Without the words used in the transcript we cannot treat the abstract as the record itself.

The second point made by the appellant rests upon a certain special contract pleaded in, the answer and offered in evidence by the appellant. And yet the abstract does not contain such contract. The statement of the case made by the appellant, to be sure, in the words, not of the contract, but of the appellant’s counsel, does set forth what is said to be the substance and effect of the contract. ■ But that will not suffice. The contract itself, or so much of it as was necessary to show the error of the court complained of, in the words of the contract, should have been set out in the abstract'.

The abstract was, therefore, in our opinion, insufficient. And the appeal is dismissed.

All concur.