Appeal
from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor
Judge.
Reversed and remanded (with directions).
S. C
Rogers and Lee W. Grant for appellant.
(1) The
court erred in overruling appellant French's motion for
judgment in her favor and order of delivery of the collateral
to her offered at the close of plaintiff's case. 31 Cyc
787 (a); Dibert v. D'Arcy, 248 Mo. 644; 31 Cyc.
825 (2), 836; Richardson v. Ashby, 132 Mo. 238;
Schaaf v. Fries, 90 Mo.App. 111; O'Meara v.
Swandson, 62 Mo.App. 73; Cotton v. Arnold, 118
Mo.App. 601; Bank v. Totten. 114 Mo.App. 104;
Chitwood v. Zinc Co., 93 Mo.App. 228. (2) The court
erred in overruling appellant French's motion for
judgment in her favor and order of delivery of the collateral
to her offered at the close of the entire case. Authorities
above. (3) The court erred in sustaining plaintiff's
motion for a new trial as against separate appellant Ida
M. French. Miles v. Wilson, 126 Mo. 54; Bank v.
Slatting's Admr., 166 Mo. 633; McKee v.
Downing, 244 Mo. 140; Stam v. Smith, 183 Mo.
470; Bain v. Fleming, 135 Mo. 597; Banking House
v. Rood, 132 Mo. 262; Jeffords v. Dreisbach,
168 Mo.App. 577. (4) The court erred in failing and refusing
to enter judgment on behalf of separate appellant French and
in ordering and directing the collateral delivered to her.
Kinealy & Kinealy for respondent.
(1) The
defendants Bennett, Cowen and Stevens were incompetent
witnesses and the court erred in permitting them to testify
on the trial. R. S. 1909, sec. 6354; Lyngar v.
Shafer, 125 Mo.App. 398; Snyder v. McAtee, 178
S.W. 484. (2) This court has heretofore held that in passing
on an appeal from an order granting a new trial all that can
be done is to affirm or reverse that action of the trial
court. Hurley v. Kenally, 186 Mo. 228; Alt v.
Dines, 227 Mo. 422; Peper v. Peper, 241 Mo.
267. (3) If, however, this court will pass on the merits of
the case and finally dispose of it. Then a personal judgment
should be ordered against the defendants Bennett, Cowen and
Stevens. (4) And the collateral securities should be ordered
sold and the proceeds applied on the judgment. 22 Am. & Eng.
Ency. Law (2 Ed.), p. 582; Borland v. Bank, 99 Cal.
95; Shormer v. McIntosh, 43 Neb. 516.
GRAVES,
C. J. Bond, P. J., reserves his opinion until after argument
in Banc.
GRAVES
C. J.
Action
in equity. The suit was originally brought by the Mercantile
Trust Co. as the executor of the estate of Addie Scott,
deceased. Later Ann Scott was substituted as plaintiff. The
petition charges that defendants, Cowen, Stevens, Bennett and
Darby, executed and delivered to Addie Scott their note of
date February 23, 1912, by which they promised to pay, for
value, the said Addie Scott $ 15,300, ninety days after date,
with interest from maturity at eight per cent per annum. The
petition then charges that at the execution and delivery of
such note, the said defendants above named, as security for
the payment of said note, delivered to Annie
Scott the following personal property:
"Six
general mortgage gold bonds for one thousand dollars each,
executed by the St. Louis & Suburban Railway Company dated
April 1, 1903, and maturing April, 1923, with semi-annual
interest coupons thereon due in October, 1912, and
subsequently, and being bonds numbered 3021, 3601, 3602,
3603, 3604 and 3605, respectively. Also, a certificate for
thirty-two shares of the Kansas City Home Telephone Company
stock.
"Plaintiff
states that thereafter by consent of all the parties said
thirty-two shares of the Kansas City Home Telephone Company
stock, evidenced by said certificates as aforesaid, were
disposed of and were replaced as such collateral by
certificate of deposit dated St. Louis, July 11, 1912,
wherein and whereby the Grand Avenue Bank of St. Louis,
acting by and through W. L. Nichols, its cashier, and A. G.
LaBarge, its teller, stated that Ida M. French had deposited
with said bank thirty-three hundred and sixty dollars,
payable to the order of the Grand Avenue Bank of St. Louis on
the return of said certificate properly endorsed after one
day notice, date in current funds, and which said certificate
of deposit was endorsed by said Grand Avenue Bank of St.
Louis by W. L. Nichols, its cashier; that plaintiff, as the
executor of the estate of said Addie Scott, deceased, is now
in possession of said six St. Louis & Suburban Railway
Company bonds and also of said certificate of deposit; that
plaintiff is informed that defendant Ida M. French claims to
have some interest in the said bonds and said certificate of
deposit and for that reason she is made a party defendant
herein.'
From
the foregoing it appears that Ida M. French was made a party
defendant, because she claimed this property or some interest
therein. The prayer of the petition reads:
"Plaintiff
therefore prays that the right of redemption of the
defendants in and to said bonds and said
certificate may be foreclosed; that said bonds may be ordered
sold and the proceeds from said sale and from said collection
of said certificate be applied towards the payment of said
note and that for any amount which may then remain due on
said note, with interest and the costs of this action,
plaintiff be given a personal judgment against the defendants
Eugene C. Cowen, Beverly C. Stevens, Charles E. Bennett and
M. H. Darby, and that plaintiff be given such other and
further relief in the premises as may be equitable and
just."
The
defendant Ida M. French, by her answer, after admitting the
death of Addie Scott, and that the Mercantile Trust Company
was her executor, avers that she is the absolute owner of the
railroad stocks and certificate of deposit mentioned in the
plaintiff's petition. Her answer (and it is one of the
important ones in the case) then further proceeds:
"The
defendant further answering alleges that she was the owner up
to and about the 11th day of July, 1912, of a certain
certificate for thirty-two shares of the Kansas City Home
Telephone Company stock, and defendant further denies that
any person at any time ever delivered to or pledged with the
said Addie Scott the said six general mortgage gold bonds,
the said thirty-two shares of the Kansas City Home Telephone
Company
stock or said certificate for thirty-three hundred and sixty
dollars as alleged in plaintiff's petition. And defendant
denies each every and all other allegations in said petition
alleged and contained.
"Defendant
for her further amended separate answer alleges that she is
and was at all the times mentioned in plaintiff's
petition the absolute and sole owner of the said six general
mortgage gold bonds for one thousand dollars each, being
Bonds Nos. 3021, 3601, 3602, 3603, 3604 and 3605; and said
certificate of deposit for thirty-three hundred and sixty
dollars, and that the said plaintiff obtained possession of
same without the knowledge or consent of this defendant, and
plaintiff well knows that this defendant is the absolute and
sole owner of said bonds and certificates and
entitled to the possession thereof, but wrongfully withholds
and detains the same from this defendant.
"Wherefore,
this separate defendant prays that this court may decree her
to be the sole owner of the said bonds and said certificate
of stock and that plaintiff be ordered and directed to
deliver the same to her, together with all interest thereon,
and coupons belonging or pertaining thereto, and for such
further orders, judgments and decrees as in the premises may
be meet, proper and just and for her costs herein
expended."
The
answer of defendant Bennett may be material, in that it
reflects the position of the defendants, other than defendant
French. This answer reads:
"Defendant
Bennett, for separate amended answer to plaintiff's
petition, admits that plaintiff is a corporation; that it is
the duly appointed executor of the estate of Addie Scott
deceased. This defendant further admits that he, together
with defendants Cowen, Stevens and Darby, executed the
promissory note set out and described in plaintiff's
petition. This defendant states that said note was given
wholly without consideration; that the said note was executed
and delivered by this defendant and his co-defendants Cowen,
Stevens and Darby solely and simply for the purpose and in
order that the said Addie Scott might use the same as a
pledge in securing a loan of $ 15,300 from the Grand Avenue
Bank of St. Louis; that the said Addie Scott, on or about the
23rd day of February, 1912, executed and delivered to the
Grand Avenue Bank of St. Louis her promissory note of even
date therewith in the said sum of $ 15,300 and pledged the
said note of this defendant and his co-defendants Cowen,
Stevens and Darby as securities for her said note; that
thereafter the debt due said bank was paid and said bank
returned said note to said Addie Scott, who retained
possession of the same.
"This
defendant denies that he and defendants Stevens, Cowen and
Darby, or any of them, delivered to the said
Addie Scott and pledged with her the bonds described in
plaintiff's petition of the St. Louis & Suburban Railway
Company, or the certificate for 32 shares of the Kansas City
Home Telephone Company stock, and this defendant further
states that neither now nor at any other time has he had any
interest whatever in said bonds, or in said certificate of
stock, or in the certificate of deposit described in
plaintiff's petition; that the said bonds and the said
stock and the certificate of deposit belongs wholly to
defendant, Ida M. French.
"This
defendant denies each and every other allegation in said
petition contained.
"Wherefore
this...
