WALKER v. MISSOURI WHITE MOTORS

BLAIR, Judge.

This was originally a replevin suit. On September 4, 1948, plaintiff therein (appellant now) filed in the Circuit Court of Greene County his amended petition, claiming that he was the owner of one Fruehauf Trailer, Serial No. 5-129624 AFF1 t-46, alleged by him to have been unlawfully and wrongfully retained by defendant (respondent), and asked for the recovery of such trailer from respondent, and for damages to such trailer.

On September 24, 1948, defendant filed its answer to such amended petition, denying the allegations of such petition and, as a second count thereof, filed a "counterclaim and petition for equitable relief," charging that plaintiff had defaulted on a contract to purchase another trailer, and for certain outlays made by defendant. Defendant wound up its said counterclaim as follows: "Wherefore, defendant prays the court, in the event the court should find plaintiff is the legal owner of and entitled to the possession of said trailer, defendant prays that the court find and decree that defendant is entitled to an equitable lien on and against said trailer in the sum of $1996.30; that the court by its judgment direct and decree the manner for the enforcement of said lien; that plaintiff recover no damages against defendant and that defendant be discharged with its costs."

On December 2, 1948, the jury returned a verdict for plaintiff for possession of the trailer in question, and for damages to plaintiff from defendant in the sum of $1000.00. Judgment was rendered on such verdict and thereafter, the trial judge rendered a judgment for defendant on its equitable counterclaim, in the sum of $601.20, and decreed that such judgment should be a lien on the trailer, and ordered issuance of execution therefor, together with costs.

The transcript filed by appellant, at page 10 thereof, contains the following: "At the request of the attorney for plaintiff-appellant the evidence introduced and offered in the trial of this cause is omitted from this record."

Concededly, the transcript does not include all of the evidence in the replevin suit. The plaintiff (appellant) contends that such evidence is not necessary to a determination by this Court of the propriety of the equitable judgment against him, on defendant's equitable counterclaim.

Defendant (respondent) contends that all of the evidence in the replevin suit is necessary before this Court can be in a position to determine whether or not the judgment appealed from was properly rendered.

Rule 1.04, promulgated by the Supreme Court of Missouri, provides:

"The transcript on appeal, required by Section 135, (1943 Act), as amended, shall always include, in chronological order, the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal, together with their respective dates of filing or entry of record. * * *.

"The transcript shall also contain all of the record, recitals, proceedings, and evidence necessary to the determination of all questions to be presented to the appellate court for decision, including objections or requests made as required by Section 122 (1943 Act), as amended, instructions, motions, orders, rulings, and other matters to which objection is taken. The evidence shall be set forth in the order received in the trial court."

The transcript in this case is signed by the attorney for plaintiff (appellant) only, and also by the trial judge, with the statement, on page 30 of such transcript, that he signed such "transcript as requested by appellant's atty." It is not signed by defendant (respondent), or its attorneys, at all. It does not purport to be a complete transcript of what occurred in the trial court. It fails to comply with Rule 1.04 of the Supreme Court of Missouri (as quoted above), and with Section 136 of the Laws of Missouri for 1943, at page 394, Mo.R.S. A. § 847.136.

Neither the certificate of the trial judge, on page 30 of the transcript filed by appellant, nor the statement of appellant's attorney, on page 10 of such transcript, brings this case within the provisions of Section 135, Vol. 2, of the Laws of Missouri for 1947, at pages 219 and 220, Mo. R.S.A. § 847.135.

The trial judge is quoted as having said:

"The Court having heard the evidence on defendant's equitable counter claim now pronounces judgment for Defendant on said counter claim as follows:

" $ 50.00 for loss on new tractor 101.20 loss on selling Plaintiff's tractor 200.00 for tires furnished by Defendant for Plaintiff's trailer, and 250.00 for Defendant selling Plaintiff's tractor

making a total judgment for Defendant against the Plaintiff in the amount of $601.20 on Defendant's equitable counter claim herein."

It is very apparent that there could be no finding, on the transcript before us, that the loss on a new tractor was only $50.00; that the loss on selling plaintiff's tractor was only $101.20; that the item of $200.00 for tires for appellant's trailer, furnished plaintiff by defendant, was correct, or $250.00 was proper for selling plaintiff's tractor. Those items may have been that much or more, and their correctness could not be determinated by the trial judge, without evidence. Such evidence may have been offered in the replevin suit. Without a transcript showing such evidence as to those items, there is no way in the world for this Court to tell whether or not the equitable allowances, made by the trial judge, were justified by the evidence.

Since defendant (respondent) has not agreed to a shortform transcript and has not agreed that the necessary evidence is shown by the transcript filed in this case by appellant, there is nothing left for this Court to do, except to dismiss appellant's appeal.

Such is accordingly our order.

VANDEVENTER, P. J., and McDOWELL, J., concur.