Burston v. Fennewald
| Decision Date | 23 January 1928 |
| Citation | 2 S.W.2d 824,222 Mo.App. 128 |
| Parties | JOE BURSTON, APPELLANT, v. GEORGE H. FENNEWALD, RESPONDENT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Callaway County.--Hon. D. H Harris, Judge.
AFFIRMED.
Judgment affirmed.
W. H Logan, W. W. Botts and Baker & Baker for appellant.
N. T Cave and Rodgers & Huffington for respondent.
Trimble, P. J., absent.
This is an action by attachment to recover upon three promissory notes executed by defendant. The suit was instituted by plaintiff in the circuit court of Audrain county, Missouri, where the parties reside, but on change of venue it was tried to a jury in Callaway county. Judgment was rendered for defendant in the attachment proceeding. On the merits of the case the judgment was for plaintiff on the notes sued upon in the respective sums of $ 1683.83, $ 2761.13 and $ 1181.90, which said amounts include the face of the notes and accrued interest. Defendant did not appeal from the judgment on the merits. After motion for a new trial was overruled, plaintiff appealed from the judgment in attachment and the case is here for review on that point only.
The facts presented for consideration of the appeal on its merits are as follows: The parties are residents of Audrain county where, as stated, the suit was instituted. Defendant was engaged in farming and stock raising and from time to time dealt in options on the board of trade. On March 3, 1926, he owned a farm of 320 acres in said county against which there were deeds of trust aggregating $ 11,000. At that time the First National Bank of Mexico, Missouri, held his three promissory notes for $ 5000 and $ 1500, both signed by him as principal and by his father, B. Fennewald, as surety, and the other note for $ 3000 signed by him as principal and by his wife, Theresia, as surety. The Martinsburg Bank at Martinsburg, Missouri, also held his three notes for $ 3500, $ 2200 and $ 3000, respectively, with his father as surety. At the same time, his father, B. Fennewald, held two notes against him for $ 4500 and $ 4425, signed by defendant as principal and his wife as surety. All these notes are shown to have been given for money borrowed and that no payment had been made thereon.
The petition charges there were outstanding at this time against defendant the three unpaid notes involved in this action, to-wit: One note dated June 2, 1924, one year after date with six per cent compound interest, payable to plaintiff Joe Burston, with a credit of $ 90 interest; a second note for $ 2500 dated February 2, 1925, due in one year at six per cent, and indorsed by George Burston; and a third note for $ 1000 dated March 1, 1922, payable in one year at eight per cent, to Leslie Freyer, with interest paid to March 1, 1925, and indorsed by Freyer.
About March 1, 1925, the First National Bank of Mexico, Mo., called payment of the notes it held against defendant. About this time defendant became hopelessly involved and was advised by the president of said bank to see his (defendant's) father. This was done and the result was that defendant conveyed to his father, B. Fennewald, the 320-acre farm owned by him, on condition that the father would pay defendant's indebtedness to the bank. This was agreeable to the bank if B. Fennewald would borrow from a loan company the sum of $ 24,000, secured by deed of trust on the land thus conveyed and upon B. Fennewald's place of 320 acres. Thereupon the deed from defendant to his father was executed March 3, 1926, subject to the $ 11,000 deed of trust heretofore mentioned. The father gave his note to the First National Bank for $ 9700, the three notes to the Martinsburg Bank were cancelled and the father gave his note to that bank for $ 8500. The two notes of defendant to his father were cancelled, the deed placed of record the same day, defendant was relieved from liability on all the notes mentioned and the father assumed sole liability thereon.
It appears a number of attachment suits were instituted against defendant, one of which was tried in Audrain county and the others were voluntarily dismissed.
In the present case, as stated, a change of venue was taken by plaintiff and the cause was tried to a jury in Callaway county. The verdict was for defendant in the attachment suit and judgment was entered accordingly. Plaintiff perfected his appeal to this court.
There was no defense interposed to the suit on the notes and the court entered judgment for plaintiff therefor. The attachment was directed against the 320 acres of land conveyed by defendant to his father and the following grounds therefor were alleged:
The plea in abatement is as follows:
"Now comes George H. Fennewald, defendant in the above-entitled cause and for his plea in the nature of a plea in abatement therein, denies each and every allegation contained in the affidavit for attachment and denies the truth of the facts alleged in the affidavit on which the attachment was sued out in this attachment."
The suit was filed May 13, 1926. It is first urged in support of this appeal that the weight of the evidence is so overwhelmingly against the verdict as to raise the presumption that the jury were influenced by passion and prejudice and disregarded the instructions, and therefore this court should reverse the judgment. Cases are cited in support of the view that this court has power to reverse a judgment where there is a positive showing that the jury were influenced by passion and prejudice. The case was hotly contested and there was substantial evidence on both sides of the controversy.
The rule is established in this State that an appellate court will not set aside a verdict approved by the trial court on the ground of lack of evidence unless the record admits of no other conclusion than that the verdict was the result of bias and prejudice, or passion, or misconduct on the part of the jury. The record discloses that plaintiff tried his case solely upon the first ground of attachment alleged in the affidavit, to-wit:
"That defendant has fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors."
Plaintiff's first instruction told the jury that the sole question at issue was whether defendant fraudulently conveyed his land to his father, and thus other grounds alleged in the affidavit for attachment were eliminated and have no place in this review.
There was substantial evidence that defendant was in debt to his father and that the father assumed payment of large sums of money defendant owed certain banks; and that, in consideration of the cancellation of defendant's indebtedness to his father and the assumption of defendant's debts to the banks, the deed to the father was executed. The question as to whether this was a fraudulent transaction was for the jury. The record fails to show any positive evidence that defendant's indebtedness to his father was not bona fide. The consideration named in the warranty deed to the father was $ 37,700, and it appears that by this conveyance defendant was released from the following obligations:
Indebtedness to defendant's father
$ 8,925.00
Due Martinsburg Bank
8,500.00
Due First National Bank
9,700.00
Total
And, in addition, there was an existing deed of trust against the land in question of $ 11,000. There is no evidence of record tending to show defendant's equity in the land was worth more than $ 27,125. Defendant offered to prove it worth less than this, but on objection of plaintiff this proof was properly refused.
The record is barren of any testimony tending to reflect upon the integrity of defendant excepting that of Leslie Freyer, the payee named in one of the notes involved, who testified that defendant had stolen parts of harness and "ought to be in the penitentiary." Defendant and his witnesses testified to the contrary, leaving the question of the credibility of the witnesses for the jury to determine. It is not the province of this court to weigh the evidence where salient facts are disputed and the evidence on both sides is substantial. [Schreiber v. Andrews, 234 S.W. 862; Price v. Evans, 49 Mo. 396; State v. Harmon (Mo.), 296 S.W. 391.] We find the language used by Fox, J., in Wright v. City, 187 Mo. 678, 86 S.W. 452, particularly applicable to the case before us where it is said:
"We have carefully considered the evidence developed at the trial, and find that this case is no exception to the ordinary contested cases of similar character, in which there is always more or less irreconcilable conflict of the testimony of witnesses."
If the testimony introduced by defendant was true and was believed by the jury, clearly it was sufficient to support the verdict rendered. The trial court refused to sustain the motion for a new trial. We hold the facts of record herein are not such as to warrant our interference with the verdict and so we rule against plaintiff on this point.
It is urged plaintiff made out a prima-facie case when he proved the conveyance of the farm, the...
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