Vogt v. Butler
| Decision Date | 02 June 1891 |
| Citation | 16 S.W. 512,105 Mo. 479 |
| Parties | Vogt, Plaintiff in Error, v. Butler, Administrator |
| Court | Missouri Supreme Court |
Error to St. Charles Circuit Court. -- Hon. W. W. Edwards, Judge.
Affirmed.
J. C Kiskaddon for plaintiff in error.
1) The exceptions to the report ought to have been sustained on the ground that the referee had failed to take and subscribe the statutory oath. A taking of an oath is not a subscription of it. R. S. 1889, sec. 2143. (2) Referees are required to report the evidence so "that the rulings of the referee upon the evidence offered may be reviewed." R. S. 1889 secs. 2152, 2153; Caruth v. Wolter, 91 Mo. 484. (3) Under pleas of payment and an offset, evidence of the habits of life of plaintiff, of his ability to earn money, of what his earnings were, in short, Exhibit A and the testimony of Springate, Nortman and Schaffner, is all irrelevant. It is an elementary rule "that the evidence offered must correspond with the allegations, and be confined to the point of issue." 1 Green. on Ev. [14 Ed.] sec. 51; State v. Roberts, 62 Mo. 388; Buffington v. Railroad, 64 Mo. 246; Brooks v. Blackwell, 76 Mo. 309; Frederick v. Allgaier, 88 Mo. 598; Sutter v Lakman, 39 Mo. 91. (4) And this rule excludes evidence of all collateral facts. 1 Green. on Ev. [14 Ed.] secs. 52, 448, 449; Coale v. Railroad, 60 Mo. 227; Lester v. Railroad, 60 Mo. 265; Weber v. Ins. Co., 5 Mo.App. 51. (5) Thus no presumption of payment of a note arises out of many other transactions between the parties thereto. Mechanics' Bank v. Wright, 53 Mo. 153; Balmer v. Sanders, 11 Mo.App. 454. (6) This case falls under the following provision of the statute providing for references: "Where the trial of an issue of fact shall require the examination of a long account on either side, in which case the referees may be directed to hear and decide the whole issue." R. S. 1889, sec. 2138; Smith v. Paris, 70 Mo. 615; Caruth v. Wolter, 91 Mo. 484. (7) In such cases, whether the reference be by consent or not, the court having the power to refer without consent, the court below can, as well as this court on appeal, review the finding of the referee on the weight of evidence, and render such judgment as the evidence warrants. Ely v. Ownby, 59 Mo. 437; State v. Hurlstone, 92 Mo. 327.
John W. Booth for defendant in error.
(1) The objection that a referee failed to subscribe the statutory oath may be and was waived. Hemelreich v. Carter, 24 Mo.App. 265; Tucker v. Allen, 47 Mo. 487; Carter v. Prior, 78 Mo. 222; Edwardson v. Garnhart, 56 Mo. 81. (2) The evidence of Vogt's financial condition was competent and proper. Matthias v. O'Neil, 94 Mo. 520; Wiggins v. Railroad, 73 Mo. 419. (3) The findings of the referee are amply supported by the evidence.
This is an action commenced in the circuit court of Franklin county, and taken on change of venue to St. Charles county.
The petition contained two counts. The first on a note dated April 2, 1878, payable one day after date to order of Henry Vogt, for $ 3,800 with six-per-cent. interest since April, 1880. The second count is on a note of date April 1, 1880, for $ 4,000, alleging that the balance due is $ 2,481.75 with interest thereon from October 26, 1886.
Rees' answer to the first count of the petition avers that on the first day of April, 1880, there was due on the first note $ 3,800 and one year's interest, amounting in the aggregate to $ 4,028; that thereupon Rees paid Vogt $ 28, and for the balance of $ 4,000 executed the note sued on in second count, and that thereby said first note was paid.
The answer then proceeds to set up various payments on said second count. To this a reply was filed denying the answer. On the issues as thus made the case was tried on September 17, 1888. The court, with the consent of the parties, referred the matters in issue in the cause to R. F. Luckett, and thereupon the oath required by statute was, by the judge of the court, administered to the referee, and forthwith the referee proceeded on the same day to hear and take testimony adduced before him by the parties, both parties appearing and participating in the trial of the cause before the referee.
December 11, 1888, said referee filed his report, by which report it appeared that the referee found that the note for $ 4,000 was executed and delivered by Rees to Vogt in full satisfaction of the $ 3,800 note, and that the balance due plaintiff on the $ 4,000 note was the sum of $ 99.74. The report of the referee as originally filed did not mention the fact of the referee having been sworn.
Vogt excepted to the report of the referee, on the alleged ground that the referee erred in admitting improper evidence, and that his finding was against the weight of the evidence, and contrary to the law applicable to the case, and on the ground that it did not appear "by the report, nor in any paper or document filed therewith, that the referee took and subscribed an oath faithfully and fairly to hear and examine the cause, and to render a just, impartial and true report according to the best of his understanding."
These exceptions were filed on the day the report of the referee was filed, and with said exceptions the following affidavit was filed: "J. C. Kiskaddon, being duly sworn, upon his oath, states that he is the attorney for plaintiff in the above-entitled cause; that he supposed and is under the impression that he was informed that the referee had taken the oath as required by statute; that he can find no such oath on file or returned with papers; that he did not know of such omission, until after the filing of the report, when an examination of the papers on file and in the cause, as well as with the report, first informed affiant of said omission."
On the filing of said exceptions and affidavit, defendant asked of the court leave for the referee to amend his report by interlining therein the words, "That, having first taken an oath in open court before Hon. W. W. Edwards, judge thereof, faithfully and fairly to hear and examine the cause and make a just, impartial and true report, according to the best of my understanding." And, in support of said application for leave to amend, defendant filed an affidavit of said referee to the effect that the referee, immediately upon his appointment as referee being made, took, in open court, before Hon. W. W. Edwards, the judge of the court, an oath faithfully and fairly to hear and examine said cause and to make a just, impartial and true report according to the best of his understanding, and that, at the time said oath was taken, J. C. Kiskaddon, attorney for said Vogt, and John W. Booth and John R. Martin, attorneys for said Rees, were personally present in court, consenting thereto; that, on said oath being taken, said referee proceeded to hear the evidence in the cause, and that such hearing was concluded on the following day; that, at such hearing, said Kiskaddon appeared for Vogt, and examined and cross-examined witnesses; that, afterwards, on the day of October, 1888, said Kiskaddon and said Martin appeared before said referee and argued and submitted said cause, and that said Kiskaddon, acting as such attorney, did not, either at said trial or at said argument, make any...
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