Opinion
January 5, 1942.
Appeal and Error — Rules. Where appellant filed brief wherein there is no clear and concise statement of any case and under assignment of errors same are merely charged in abstract terms without assignment of reasons and without assignment of authorities and no where in appellant's brief is there any reference made to any page of the record the failure of appellant to comply with appellate court rules 15, 16, and 17 is manifest and the appeal, therefore, will be dismissed.
Appeal from Circuit Court of Jackson County. — Hon. Thos. J. Seehorn, Judge.
APPEAL DISMISSED.
W. Rea Heath for appellant.
(1) Contract and quantum meruit are inconsistent pleadings. Wamsganz v. Blanke-Wenneker Candy Co., 216 S.W. 1025; Wade v. Nelson, 119 Mo. App. 278. (2) Defendant should be required to elect on what count he would go to the jury on. State ex rel. Athletic, etc., Co. v. Cameron et al., 273 S.W. 746; Kennedy v. Summerville, 64 Mo. App. 75. (3) The evidence that plaintiff made objection to settlement and alleged settlement to others, that was communicated to defendants, should have been admitted. Freyce v. Bank, 296 S.W. 452.
Hogsett, Trippe, Depping Houts for respondents.
(1) The judge before whom this case was tried was out of office at the time he signed the Bill of Exceptions and said Bill of Exceptions should have been signed by the special judge who succeeded him. There is, therefore, no Bill of Exceptions in this case, and nothing before the court but the record proper, which is free from error. Sec. 1178, R.S. Mo. 1939; Ranney v. Hammond Packing Co., 132 Mo. App. 324, 110 S.W. 613; Berry v. Leslie, 131 Mo. App. 258, 110 S.W. 685; Robertson v. McFarland, 87 S.W.2d 1067. (2) Appellant's complaint that evidence of plaintiff's objections to the settlement made to others was improperly excluded, and that cross-examination of defendants thereon was denied, is wholly groundless; and not before this court for review because not properly developed in appellant's brief. Adamack v. Herman, 33 S.W.2d 135, 138; Rathbone v. Rathbun, 35 S.W.2d 38; State ex rel. State Highway Commission v. Caruthers, 51 S.W.2d 126, 133; Schaber v. Smith, 56 S.W.2d 820, 821. (3) There is no merit to the claim that the court erred in allowing "several defenses;" Points 1 and 2 of appellant's points and authorities are not developed in the argument and present nothing for review; the record shows that the amended answer was filed during the trial by agreement; and the defenses pleaded therein are not inconsistent, because evidence in support of one does not destroy the others. Vaughn v. Conran, 20 S.W.2d 968, 969; Finley v. Williams, 325 Mo. 688, 29 S.W.2d 103, 105.
Plaintiff has filed a brief herein wherein there is no clear and concise statement of any case. By referring to the abstract filed, we are confronted with the information, "this cause was started for trial under the following petition and a general denial," when and where not disclosed.
Thereafter, there is shown a petition which appears to be a statement of cause of action for money had and received. Issue was joined by answer wherein defendants allege that the money sued for had been paid them for legal services and expenditures connected with same, which services were rendered at the special instance and request of plaintiff.
The record discloses that there was a trial by jury with verdict for defendants and that judgment was entered in accordance with verdict and that plaintiff appealed therefrom.
Under assignment of errors same are merely charged in abstract terms without assignment of reasons and without assignment of authorities and nowhere in plaintiff's brief is there any reference made to any page of the record.
The defendants, respondents herein, have filed a motion to dismiss appeal for reason that plaintiff, appellant herein, has failed to comply with our rules 15, 16, and 17.
The failure of plaintiff to comply with our rules is manifest. There is nothing in plaintiff's brief that calls upon us to review the case. From an examination of the record before us, we find nothing that would justify us to do other than to dismiss the appeal, and it is so ordered. All concur.