Hemelreich v. Carlos

• Decision Date: 10 January 1887
• Citation: 24 Mo.App. 264
• Parties: ANGELICA HEMELREICH ET AL., Plaintiffs in Error, v. C. C. D. CARLOS, Defendant in Error.
• Court: Missouri Court of Appeals

24 Mo.App. 264

ANGELICA HEMELREICH ET AL., Plaintiffs in Error,

v.C. C. D. CARLOS, Defendant in Error.

Kansas City Court of Appeals, Missouri.

Jan. 10, 1887.

ERROR to Cooper Circuit Court, HON. T. M. RICE, Special Judge.

Reversed and judgment entered here conformably to the statute.

The case is stated in the opinion.

W. W. S. SNODDY, for the plaintiff in error.

I. The court erred in rendering a personal judgment against plaintiff (who is a married woman), and her sureties jointly. The judgment is an entirety and is a nullity, and must be reversed as to all. Holten v. Power, 81 Mo. 360; Holt Co. v. Harmon, 59 Mo. 165; Decker v. Silver, 3 Mo. App. 586. The act of 1883 only extends her liability to costs. Laws of Mo., 1883, p. 113; Caldwell v. Stephens, 57 Mo. 589; Ins. Co. Case, 71 Mo. 465; Asbury v. Odell, 83 Mo. 264. And this court has no power to strike out her name and permit the judgment to stand as to the others. Dailey v. Houston, 58 Mo. 361; Holten v. Tower, 81 Mo. 360; Gamble v. Gibson, 83 Mo. 291.

II. When plaintiff proved that she was in possession of the property when it was levied on, the burden was on defendant to show that the possession was fraudulent, and that plaintiff was not the owner of the property. Hill on Torts, 62; Martin v. Ray, 1 Black, 291; Smith v. Lydick, 42 Mo. 209; Bernecke v. Miller, 44 Mo. 514. Fraud will not be presumed. Rumbold v. Pair, 57 Mo. 592; Ames v. Gilmore, 59 Mo. 537; Bump on Fraud. Conveyances, 562. Mere suspicion is not sufficient. Parkhurst v. McGraw, 24 Miss. 134; Waddingham v. Loker, 44 Mo. 132; King v. Moon, 42 Mo. 551.

III. The finding and judgment of the court were against the evidence and against the weight of evidence. All the evidence was in favor of the plaintiff. There was no conflict. The verdict must have been set aside. Scott v. Brockway, 7 Mo. 61; Robbins v. Ins. Co., 12 Mo. 387; Allen v. Garesché, 13 Mo. 308. The judgment must be reversed because of error in refusing new trial. Clemens v. Laveille, 4 Mo. 80; Bybee v. Kinoto, 6 Mo. 53; Tucker v. Railroad, 54 Mo. 177. It is only when the facts are disputed, that the losing one is concluded by the verdict. Gambs v. Ins. Co., 50 Mo. 44; Maher v. Railroad, 64 Mo. 267.

IV. The plaintiff held the title to her property here in accordance with our laws, and neither marriage in Missouri to a resident of Iowa, nor a removal there with her husband could change her property rights. Reddick v. Walsh, 15 Mo. 529.

V. The court erred in giving the instructions asked by defendant, as not supported by the evidence. Franz v. Hilderbrand, 45 Mo. 141; Ewing v. Goss, 41 Mo. 492; Camp v. Heelan, 43 Mo. 591.

DRAFFEN & WILLIAMS, and W. P. JOHNSON & SON, for the defendant in error.

I. It devolved upon plaintiff to prove her case. The court below, sitting as a jury, was the sole judge of the weight of the evidence and the credibility of the witnesses. And this court will not interfere with the province of the jury. State v. Lambert, 21 Mo. App. 301; Phillips v. Schall, 21 Mo. App. 38. Where the questions of fact are submitted to the trial court, sitting as a jury, the same rule prevails. Hurlbut v. Jenkins, 22 Mo. App. 572; Weise v. Moore, 22 Mo. App. 530.

II. No question is made in this court as to the correctness of the declarations of law given for defendant. No error during the trial is alleged as ground for reversal. The only question made is upon the evidence. This court will not weigh evidence. Greffett v. Dowdall, 17 Mo. App. 280; McGinness v. Mitchell, 21 Mo. App. 493; Filley v. McHenry, 84 Mo. 277; Miller v. Breneke, 83 Mo. 163.

III. The act of 1883 (Laws Mo. p. 113) expressly authorizes a judgment for costs against a married woman. In any event a judgment against her is not reversible error. This court can amend by striking out her name. Crispen v. Hannovan, 86 Mo. 160; Snell v. Harrison, 83 Mo. 651; Weil v. Simmons, 66 Mo. 617; Mansfield v. Allen, 85 Mo. 502; Purdy v. Garrett, 19 Mo. App. 191. Or by modifying the judgment, and reversing it as to one and affirming it as to the others. Mansfield v. Allen, 85 Mo. 502. And the same principle was applied, even in a criminal case, in State v. Stair.W. W. S. SNODDY, in reply.

I. The abstract of the record by defendant is not fair nor accurate.

II. The cases cited as to the character of the judgment rendered have no application to this case. All decisions prior to Holten v. Towner (81 Mo. 360), are overruled by it. Those rendered subsequently are not relevant.

III. Plaintiff does question the instructions given for defendant, and their application to the case. They assumed facts not in evidence and are misleading.

IV. When it is conceded that plaintiff was in possession of the goods, asserting title, the burden is on defendant, especially when fraud is alleged, to prove by a preponderance of evidence all his material allegations.

DRAFFEN & WILLIAMS, and JOHNSON & SON, in further reply.

I. The objection as to abstract of record is not warranted. That as to the qualification of the special judge comes too late. Carter v. Prior, 78 Mo. 222; Grant v. Holmes, 75 Mo. 109.

II. There was no error in the trial; nor in the finding of the court. Hence there can be no ground for a new trial. If the court erred as to the judgment given, this court must give “such judgment as the circuit court ought to have given.” Rev. Stat., sect. 3776; Hunt v. Railroad, 1 West. Rep. 203.

PHILIPS, P. J.

This is an action of replevin, instituted in the Moniteau circuit court, and tried on change of venue in the Cooper circuit court, before Hon. T. M. Rice, sitting as special judge. The action is for the recovery of a stock of goods, merchandise, etc. Petition in the usual form. The answer tendered the general issue, and pleaded that the defendant, as sheriff of Moniteau county, under a writ of execution issued on a judgment from the circuit court of said county in favor of ______, against Morris Hemelreich, had seized said goods as the property of said defendant in execution. It then alleged property in said Morris, and charged that the claim of plaintiff thereto was fraudulent against the creditors of said Morris, and especially as against the plaintiff in said execution. The reply tendered the general issue.

The cause was submitted for trial before the court sitting as a jury. The court found the issues for defendant, finding the property to be of the value of two thousand dollars, assessing the damages at one cent, and rendering judgment against plaintiff and her securities for the return of the property, or that they pay the sum of eleven hundred dollars, the amount of the delivery bond, at the election of defendant, with costs. To reverse this judgment the plaintiff prosecutes this writ of error.

I. As we discover no valid objection to the declarations of law given by the court at the instance of the defendant--the plaintiff having asked no declarations--the only question, as to the verdict, is, was there any evidence to support it? Counsel for plaintiff is in error in assuming that, as the plaintiff was found in possession of the goods at the time of the seizure under the execution, the law will presume the plaintiff was prima facie the owner, and the burden rested upon the defendant to overcome, by affirmative proof, this presumption. This may be conceded to be the general rule as between parties sui juris. But the record in this case shows that the plaintiff was and is a married woman, the wife of said Morris Hemelreich, the defendant in said execution. It has been expressly held by this court that, as to a feme covert found in possession of personal property, the presumption of law is that her possession is that of the husband. McFerran v. Kinney, 22 Mo. App. 555. This view is also sustained by the Supreme Court in Weil v. Simmons (66 Mo. 619-620).

The burden, therefore, rested on the plaintiff to show by evidence, to the satisfaction of the jury, against the presumption which the law makes that this property belonged to the husband, that she in fact was the sole and separate owner.

The plaintiff undertook by her own testimony, unsupported, to overcome this prima facie case against her claim. The case is argued here as if her statements, as witness in her own behalf, imported absolute verity, and that the trier of the facts had no right to disregard them. The law in its progress has not, and should not, enlarge upon the wise observation of Lord Coke, that “with respect to the questions of law the jury must not respond, but only the judge; so, or in like manner, or under like restrictions, the judge must not respond to questions of fact, but only the jury.” Responsive to this fundamental idea in our jurisprudence, it is axiomatic, in practice, that the jury are the sole judges of the weight of the evidence and the credibility of the witnesses; and the court has no power to coerce the triers of the facts to credit any witness. Gregory v. Chambers, 78 Mo. 294; Cannon v. Moore, 17 Mo. App. 102.

Where the court is satisfied that the jury has been swayed by undue passion or prejudice, or acted in disregard of the instructions of the court, or against the plainest dictates of truth and justice, it may direct a venire de novo. There its province ends.

The common law, which rested so long on the wisdom and experience of English and American law givers, absolutely disqualified a party to the action as a witness in his own behalf. It went upon the law of human nature, that self-interest, as a rule, was too strong for the dominion of unmixed truth. And while our statute now renders such party a competent witness, the fact of such interest remains a proper subject for the consideration of the jury in estimating the value to be attached to such testimony.

In order to protect, as far as the rules of law will permit, the rights of this plaintiff, we have examined with much patience and care the testimony, as furnished us by the abstracts herein. If there is any important fact not seen by us in this...