Crook v. Tull
| Decision Date | 01 July 1892 |
| Parties | Crook et al. v. Tull et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Clark Circuit Court. -- Hon. B. E. Turner, Judge.
Affirmed.
Smoot & Pettingill for appellants.
(1) Plaintiff, John D. Crook, was not a competent witness after the death of Dabney L. Tull, one of the defendants, to prove the date of contracting the debt. Meier v. Thieman, 90 Mo. 433; Bank v. Hunt, 25 Mo.App. 170. (2) This action could not be tried until the third term after the death of Dabney L. Tull. Revised Statutes, 1889, sec. 2201. The action did not abate as to said deceased until the third term after his death. Farrells v. Brennan, 25 Mo 85; Gamble v. Dougherty, 71 Mo. 599. (3) After the suggestion of the death of Hudson of the plaintiffs, it is error to proceed to judgment without bringing in the representative. Gamble v. Dougherty, 71 Mo. 599. Where one of the copartners dies, the action survives to the other copartner provided he qualifies as such, if not to the administrator. Bredow v. Ins. Co., 28 Mo. 181; Mutual Sav. Ins. v. Enslin, 37 Mo. 453; James v Dixon, 21 Mo. 538; Whittlesey's Missouri Practice sec. 237. (4) The judgment was excessive. There was no proof of payment of costs by plaintiff Crook. (5) The judgment was not supported by the evidence. There was no evidence to show that the property in question was not the property of defendant, Ella R. Tull. Revised Statutes, 1889, sec. 6869.
Geo. T. Collins for respondents.
(1) Court can only consider the record proper, in passing on this case, for the bill of exceptions does not contain either motion in arrest or motion for new trial. Jefferson City v. Opel, 67 Mo. 394; McNeil v. Ins. Co., 30 Mo.App. 306; Fuller v. Thomas, 36 Mo.App. 105; Perkins v. Bakrow, 39 Mo.App. 331; State v. McRay, 74 Mo. 303; State v. Robinson, 79 Mo. 66; State v. Anderson, 86 Mo. 309. It is not sufficient if it appears in record proper. Perkins v. Bakrow, 39 Mo.App. 331. (2) J. D. Crook, one of the respondents herein, was a competent witness, on the trial of the cause, to prove dates of contracting debt with Dabney L. Tull, though said Tull was deceased, for debt was not the cause of action in issue and on trial. The cause of action in issue and on trial was to charge the real estate of Ella R. Tull with payment of debt of Dabney L. Tull, which had before been fixed, ascertained and determined by judgments in evidence. Revised Statutes, 1889, sec. 8918; Angell v. Hester, 64 Mo. 142; Meier v. Thieman, 90 Mo. 433. (3) Crook did not answer the question as to date of contracting debt; it was withdrawn, and then he was asked what business was he engaged in, to which question appellant interposed the following: "Same objection as above," which is not an objection that can be considered by this court. Shelton v. Durham, 76 Mo. 434; Allen v. Mansfield, 82 Mo. 688; Peck v. Chouteau, 91 Mo. 138; State v. Brannum, 95 Mo. 19. (4) Action was properly tried before the expiration of the third term after the death of defendant, Dabney L. Tull, for he was not a party in interest; was only made party defendant to fulfill the law that requires, in actions against married women, the husband shall be joined with her. (5) It is not error to proceed to try and enter judgment in name of surviving partners, after death of copartner and party to action, without first bringing in the representatives of the deceased copartner. Matney v. Gregg, 19 Mo.App. 107; Weise v. Moore, 22 Mo.App. 530. Such defect, if defect it was, appellant could only take advantage of by demurrer or answer. Gimbel v. Pignero, 62 Mo. 240; Dunn v. Railroad, 68 Mo. 269; Butler v. Lawson, 72 Mo. 227; Walker v. Deaver, 79 Mo. 674. (6) The judgment was supported by the evidence; the evidence proved that the title to the real estate was placed in appellant, Ella R. Tull, after her marriage with Dabney L. Tull; that Dabney L. put all his means, labor and skill and earnings in the improvements placed upon said real estate, both before and after contracting the debt sought to be charged against the lands, which labor, earnings and means so put in said improvements, after the contracting of said debt, exceeded same in value, and so did the earnings, means and labor put in before. Sloan v. Torry, 78 Mo. 623; Gault v. Saffin, 44 Pa. St. 367; Seetz v. Mitchell, 94 U.S. 580; Weil v. Simmons, 66 Mo. 620; McFeiner v. Kinney, 22 Mo.App. 554; Kinly v. Bruner, 45 Mo. 235.
This suit is in the nature of a creditors' bill to charge certain real estate held in the name of defendant, Ella R. Tull, with the payment of certain judgments in favor of plaintiffs and against Dabney L. Tull, husband of said Ella.
It is charged in the petition that on the twenty-first day of January, 1878, plaintiffs, John D. Crook, John C. Paxton and Washington Hudson, as partners, obtained two judgments against Dabney L. Tull for $ 25 and $ 61.65 respectively and costs; that said judgments were rendered upon notes bearing interest at ten per cent. per annum; that executions on said judgments were issued and returned nulla bona; that the judgments were revived February 23, 1883, and transcripts filed in the office of the circuit clerk of the county, April 19, 1883, and duly recorded; that executions on these transcript judgments were also issued, but no property was found in the name of the defendant therein upon which to levy the same; that after contracting the said debts said defendant, Dabney L. Tull, for the purpose of hindering, delaying and defrauding his creditors, caused all his interest in both real and personal estate, of which he was possessed, to be conveyed to his wife, defendant, Ella R. Tull; that all his own means and such as he made in business was vested in lands and personal property in the name of his said wife.
It was charged that she held in that manner several hundred acres of land, and a large number of cattle, horses, sheep and other personal property. The prayer was that the said lands be subjected to the payment of these judgments. The answer was a general denial.
Before the trial, defendant, Dabney L. Tull, died. There was no revival of the cause, and the case was tried at the next term against the wife alone.
After finding the correctness of the judgments and the amounts due thereon, the court found that, after contracting the indebtedness with plaintiff, the said Dabney L. Tull transferred or caused to be transferred to defendant, his wife, all his land -- over six hundred acres, and all his personal property; that the husband had the full control and management of the estate; that his labor and skill were all devoted to the care and management of the same, and that he had no property in his own name out of which the debt could be made.
The court found the facts as charged in the petition, and it was adjudged that the said judgments, with interest and costs as found, should constitute a lien and charge on said land, and that the same should be sold, etc. From this judgment defendant appealed.
I. It is objected by defendant, in the first place, that under section 2201 of the statute no trial could be had until the third term after the death of Dabney L. Tull, unless the cause was first revived in the name of his administrator, and that, therefore, the trial was premature. It is undoubtedly true, as contended, that no suit can abate in case of the death of a party thereto until the third term after suggestion of the death, and a trial before that time, without a revival, could not properly be had. This rule only applies, of course, to such actions as require that the administrator of the deceased party would have been a necessary party to an original suit. We do not think the administrator of the deceased husband of defendant a necessary or proper party to the suit. Neither deceased nor his administrator could attack or impeach the validity of the deeds under which the title to the land was vested in defendant. Jackman v. Robinson, 64 Mo. 289; Roan v. Winn, 93 Mo. 503, 4 S.W. 736.
The husband was only necessary, as a party, originally, in order to conform to the statute then in force, requiring him to be joined with his wife in a suit for or against her. Revised Statutes, 1879, sec. 3468. We do not think there was error in proceeding against the wife alone.
II. The record shows that Washington Hudson, one of the plaintiffs and a copartner with the other plaintiffs, also died pending the suit and prior to the trial and judgment. The action proceeded after his death in the name of the survivors without objection by defendant. It is, in this court objected for the first time, that the court erred in thus proceeding, and for that reason the judgment should be reversed. We do not agree to this objection for two reasons. It is the settled rule of practice in this state that an objection on account of defects of parties, unless made in an appropriate manner before the trial, will be taken as waived by the opposite party. Dunn v. Railroad, 68 Mo. 268; Butler v. Lawson, 72...
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