Sharp v. Q., O. & K. C. Ry. Co.

ON REHEARING.

ELLISON, J. —

A motion for rehearing was sustained in this cause which complains of us for stating in the opinion that the case was tried in the circuit court on the theory that “if the law restraining swine *533 were in force in Sullivan county, the fence plaintiff built would be a proper fence.” That is only half of what we stated. We stated that it had not only been tried in the loAver court on that theory, but that it was tried, or rather heard, in this court, on that theory. Both statements are true, and either is fatal to defendant’s appeal.

In the course of the hearing of evidence in the trial court there were but six objections made by defendant. Three of these were merely objections with no reason assigned, and two of the three with no exception saved. One was to a question as to the condition of the old fence, and one to a question as to Avhich was the cheapest. Neither of these has been noticed or mentioned in this court. But to plaintiff’s offer of evidence that Sullivan county had adopted the laAV restraining swine, there was a specific objection, which being overruled, an exception was taken. That objection was “for the reason that there is no allegation in plaintiff’s statement that such a law is, or was in force in this county.” It is true that there was a .demurrer to the evidence offered by defendant and refused by the court, Avhich in the absence of anything limiting its meaning, would cover the point that plaintiff had not built such a fence for the building of which defendant was liable to pay. And so, also, defendant offered, and the court refused, an instruction that unless the plaintiff had built a fence four and one-half feet high with posts not more than eight feet apart, he could not recover. But the face of the record shows that the reason causing the offer of these instructions was that (on account of omission in pleading) there was no proper or legitimate showing that Sullivan county had adopted the swine law, which law authorized a fence such as plaintiff built. This is all made additionally clear by the brief and argument in this court. But, cutting out of consideration all reference to the real intention of the defendant in offering the instructions refused and allowing to it the *534 benefit of the full breadth of them as they read, we will proceed to consider the case as it has been presented in this court and place our decision on that branch of the case.

The laws of this State have provided courts for the trial of controversies between parties, and when a judgment is obtained against one of them it is a final and conclusive determination of the controversy, except that the losing party has a right to complain of errors in the trial. This complaint must be first made in the trial court. The trial may be replete with errors, yet if he does not choose to complain to tlie trial court and ask that they be corrected, the judgment is as final and conclusive as if no error had been committed. If his complaint is overruled by the trial court, he may take such errors, or as many of them as he chooses, to an appellate tribunal established by the law for the correction, of errors. In point of practice, parties knowing that on appeal they can only complain of such errors as they complained of in the trial court, enter complaint or assert many more errors in that court than, on consideration afterwards, they care to urge in the appellate court. So to facilitate the disposition of appeals, in the appellate court and that it may be known what errors the appellant relies upon, he is required by the statute (Sec. 863, R. S. 1899) to furnish the court with a brief containing the points intended to be insisted on; and this cannot be neglected, even by agreement of the parties. [Disse v. Frank, 52 Mo. 551 ; Mister v. Corrigan, 17 Mo. App. 510 .] And this court has adopted rules requiring the points and legal propositions relied upon for reversal of the judgment of the trial court to be stated, alleging separately and distinctly the errors committed by the trial court, and declaring that no reference will be permitted to any error not-thus specified (Rules 15 and 17), and the Supreme Court (Rule 15) and the St. Louis Court of Appeals (Rules 15 and 18) have the same.

*535 It is apparent that under the statute and rules no error not thus claimed and pointed out in the brief, should be noticed by the appellate court. Claim of error raised in the trial court not thus pointed out will be waived by the claimant. [Elliott’s App. Procedure, secs. 438, 444.]

The parties submitted' the case in this court on briefs and printed argument, and applying’ the foregoing statement of the law and the'rules of court to defendant’s brief, we find no mistake was made or injustice done in the original opinion. The brief states and cites authorities to show that the statute is penal. It is then stated that notice of an intention to build a fence is not required — that a notice is only required where a fence is to be repaired; and then it is stated that the notice must be given in the manner required by the statute.

The opinion shows that notice was only required where a repair was to be made of a fence originally built as the statute directs, and as the defendant had not built such a fence, a notice was not required; and thus the question of notice and most of defendant’s brief was disposed of.

It was next pointed out in the brief that in actions on penal statutes every fact essential to a recovery must be affirmatively pleaded, and that (italics ours), “In this case as the posts were at least sixteen feet apart there can be no recovery unless it was proved that the stock lato tens in force. But of this essential fact there was no allegation in the statement. The admission of this evidence over defendant’s objection was reversible error.”

Coming to the printed argument we find that perhaps the greater part of it relates to the matter of notice, which we need not refer to further. Then it is therein said (italics ours) :

“Again, if there is no stock lato in the county the posts must be set not more than eight feet apart. If *536 the stock law is in force they can be set sixteen feet apart. The best that can be said of the fence that Sharp built, was that he aimed to set the posts sixteen feet apart. If there toas no stock km the fence he built was clearly not a legal fence. It is important therefore in this case to know whether the stock law was in force or not. The statement does not allege that the law was in force. It does not refer to it at all. Nor was any attempt made to amend the statement. But plaintiff sought to cure the defect and to make out his case by offering to prove it. To this offer we objected because there was no such allegation in his statement. But our objection was overruled,” etc.

The foregoing covers the entire brief and argument save the last point in the brief. There is no suggestion or intimation of any other error. As we have above stated, the motion for rehearing recites that defendant filed a demurrer to the. evidence in the trial court and also asked instruction numbered 1, in regard to the distance apart of the posts. But the error of refusal of those instructions is not mentioned in the brief or argument. On the contrary the argument just quoted stated that the reason the posts must not be more than eight feet apart was that there was no stock law, and affirmatively admitted that if there was a stock law the posts could be sixteen feet apart.

The last 'point in the brief, to which we just referred, was as to the refusal of defendant’s second instruction, in which-it was declared that if “any of the posts in the fence were more than sixteen feet apart,” plaintiff could not recover. This point though made in the brief we did not notice in the opinion because we deemed it a mere formal assignment without merit. It is not afterwards referred to by the defendant. There was but one witness for the defendant and he was on the subject of the distance of the posts apart. He had been sent out by defendant for the purpose of measurement. He found only two, in a half mile of fence, that *537 were more than sixteen feet apart. Though the statute must he substantially complied with, mathematical precision is not required. Substantial compliance was shown and it was quite proper to refuse an instruction on the evidence referred to, especially one that submitted so restricted an hypothesis as whether “any” of the posts were “more than sixteen feet apart.”

At the rehearing it was conceded in the argument by defendant’s counsel that no point was made or suggested in the defendant’s brief and argument concerning the action of the trial court in refusing the demurrer to the evidence or instructions offered. The brief and argument submitted by defendant forced such concession, for there is no room to doubt that defendant’s position in this court was that but for the defective pleading plaintiff’s recovery was proper. The record shows that defendant admitted at the trial that the law restraining swine had been adopted in Sullivan county, but contended that it was not proper evidence because not pleaded.

But defendant now contends that notwithstanding its admission and its omission to present in its brief and argument any other points against the judgment than those noticed by the court in the opinion, yet since a rehearing was granted, it now has the right to present the points originally omitted. The case of Linahan v. Barley, 124 Mo. 560 , is cited in support of such asserted right. While that case was not overruled in Reno v. Fitz Jarrell, 163 Mo. 411 , as to this point, yet we do not think it touches the question we are now considering. Here a party fails to secure the reversal of a judgment rendered against him by a trial court, for the reason that he did not bring the error to the attention of the upper court on appeal as required by the statute law and the rules of court. The upper court thinking possibly it may have done the party an injustice, a rehearing was granted that the question might be considered again. Now if the mere granting a motion for *538 rehearing forgives the omission of the party at fanlt, then there could, be no proper consideration of such motion, in such cases, since the court would be confronted with the knowledge that to grant a rehearing, meant, in effect, to relieve the party of his default. If the court did not overrule the motion, it would save time by' refusing to enforce the statute and rules in the first instance.

If we are to allow’ the statute and rules of court any effective force, we must affirm the judgment.

All concur.