dissenting. I respectfully dissent because I do not agree that this is a proper case for affirmance under Rule 9 (e). It is true that appellant did not set out the decree relied upon to establish res judicata, or the pleadings in the case in which that decree was rendered, in the portion of the brief devoted to abstract or abridgment of the record. The essential portion of the decree was reproduced in that part of the brief following the title, “Argument.” It is a complete statement of Finding No. 1 in the previous decree. That finding reads:
“1. Plaintiffs began this suit for the purpose of partitioning certain lands described in their complaint on the grounds that they are lawful heirs of W. A. Cluck, deceased, and are entitled to have their shares of his estate set over to them. Based not only upon defendants’ Request for Admission No. 1, of which there was no timely denial by the plaintiffs, but also in consideration of all the evidence presented on behalf of the plaintiffs, the court finds that shortly after the death of the late W. A. Cluck, his widow and children, being all of the parties to this litigation, entered into a family agreement by which all of the Cluck family lands, including all land described in the complaint herein, would be used for the support, maintenance, and enjoyment of Mrs. Blanche L. Cluck, widow of the late W. A. Cluck. In view of that family agreement, there can be no partition of the Cluck family lands during the life of said widow.”
Appellant also states, with appropriate transcript reference, that the court decreed that the complaint for partition of certain lands described herein should be and was thereby dismissed for want of equity.
The sole and only reason given by the chancellor in this case for denying the defense of res judicata was that there was a deed dated July 8, 1970 by which appellant Mack acquired the interest of her mother in the lands and that if the court (presided over by another chancellor) had been aware of this deed, he would not have made this decision. This was an unwarranted and speculative assumption on the part of the chancellor. It is clear that the deed was on record at the time the prior decree was entered. It is also true that appellant did not abstract this deed, but appellee elected to supply that deficiency by reproducing the deed in full. The consideration for that deed is stated as follows:
.....for and in consideration of the sum of One Dollar (Si.00), to me paid by Margaret Ann Mack, receipt of which is hereby acknowledged, and in further consideration of the promise and covenant of the said Margaret Ann Mack to see that I am well taken care of and provided for in every reasonable way during the remainder of my natural life, do hereby grant, bargain, sell, and convey unto the said MARGARET ANN MACK and unto her heirs and assigns forever.....
The terms of this deed were in no wise inconsistent with the earlier decree. The finding that appellee was not entitled to a partition of the lands was conclusive on the issue here presented. If he was not entitled to a partition for the reasons stated in the prior finding, he was not entitled to an accounting for rents during the lifetime of his mother. This may not technically be res judicata, but it certainly constituted a collateral estoppel.
I cannot join in the highly technical application of Rule 9 in this case. To say the very least, this is a case in which the court should find that the action taken is unduly harsh; and appellant’s attorney should be allowed to reprint his brief, at his own expense, to conform to Rule 9 (d).
I am authorized to state that the Chief Justice and George Rose Smith, J., join in this opinion.