Missouri Supreme Court for the Year 1944, The (1945)

S AND BRIEFS With the adoption of the new Code of Civil Procedure, effective January 1, 1945, new rules governing appellate practice, promulgated by the supreme court, also went into effect. For that reason, the opinions written in 1944 and prior years on questions relating to rules of court governing appellate practice are of importance in future litigation only in so far as the rules there construed have been re-adopted in the new rules. In Padgett v. Missouri Motor Distributing Corporatio 21, the court 18. 184 S. W. (2d) 424 (Mo. 1944). 19. 352 Mo. 905, 180 S. W. (2d) 40, 43, 45 (1944). 20. 176 S. W. (2d) 533 (Mo. 1943). 21. 177 S. W. (2d) 490 (Mo. 1944). Vol. 10 8 Missouri Law Review, Vol. 10, Iss. 4 [1945], Art. 2 http://scholarship.law.missouri.edu/mlr/vol10/iss4/2 1945] WORK OF MISSOURI SUPREME COURT FOR 1944 255 again held that the failure to include in the abstract the testimony of witnesses which is not material to the appellate issues does not render the abstract defective under old Rule 13 which required that the abstract shall set forth so much of the record as is necessary to a complete understanding of the questions to be presented on appeal. Under the new code and new appellate rules, a different result might have been reached because, by rules 1.04 and 1.06 of the new rules, the entire evidence must be included unless the respondent expressly (or presumptively, under Rule 1.06) consents that immaterial evidence be omitted. In Ford v. Louisville & N. R. R.,22 the appellant, by way of setting out assignments of error as required by Rule 15 of the old rules of the supreme court, merely quoted the motion for new trial. Respondent, relying on the holding in Avlgur v. Strodtnan23 , that adoption of the motion for new trial is insufficient, moved to dismiss the appeal. The court, however, distinguished the case under review from the Aidgwr case upon the ground that, while the motion for new trial in the Aulgur case contained only general assignments, the motion in the case under review distinctly and specifically assigned error to the admission of certain specific evidence, and the court held that the error relied upon had been distinctly pointed out. Accordingly the motion to dismiss the appeal for failure to comply with the rule was overruled, and the judgment was reversed because of the error thus pointed out. In Rockwood v. Crown Laundry Co. 24, the appeal was from a judgment for defendant rendered upon refusal of plaintiff to plead further after demurrer to the petition had been sustained. Respondent moved to dismiss the appeal on the ground that the abstract did not contain the judgment appealed from, nor the affidavit for appeal. However, the abstract did contain, in narrative form, recitals showing the entry of judgment and the fact that the affidavit had been filed and the appeal taken, and the motion to dismiss was overruled. The decisions in the year under review do not include any cases in which the right of review has been denied for failure to comply with court rules. As before stated, the new code and the new rules should go far in eliminating both delay and the loss of the right of appellate review through 22. 183 S. W. (2d) 137 (Mo. 1944). 23. 329 Mo. 738, 46 S. W. (2d) 172, 174 (1932). 24. 352 Mo. 561, 178 S. W. (2d) 440 (1944). 9 Fisher: Fisher: Missouri Supreme Court Published by University of Missouri School of Law Scholarship Repository, 1945