Bealey v. Smith
| Decision Date | 12 November 1900 |
| Citation | 59 S.W. 984,158 Mo. 515 |
| Parties | BEALEY v. SMITH, Appellant |
| Court | Missouri Supreme Court |
Transferred from Kansas City Court of Appeals.
Judgment of circuit court reversed.
James W. Boyd for appellant.
(1) The identical question whether the court should instruct the jury to find against appellant on this counterclaim was before this court on a former appeal and decided in favor of this appellant. That decision settles the question, and the circuit court had no right to ignore it. This question is res adjudicata. Forester v. Railroad, 26 Mo.App. 122; Bevis v. Railroad, 30 Mo.App. 564; McKinney v Harral, 36 Mo.App. 338; The S.W. L. & Z. Co. v. Ins Co., 41 Mo.App. 406; Crumley v. Webb, 48 Mo. 562; Bank v. Taylor, 62 Mo. 338; Adair County v. Ownby, 75 Mo. 282; Musser v. Brink, 80 Mo. 350; Gaines v. Fender, 82 Mo. 497. (2) Appellant is entitled to have his counterclaim for the money respondent collected on the four Gilbert Blake notes held by respondent before Blake's death, submitted to the jury. R. S. 1889, sec. 2050; Green v. Conrad, 114 Mo. 651; Smith v. Springer, 83 Mo. 408; McAdow v. Ross, 53 Mo. 199; R. S. 1889, secs. 191 and 192; Grocer Co. v. Painter, 66 Mo.App. 481; Mitchell v. Morton, 63 Mo.App. 560; The American Law of Administration, Woerner, vol. 2, sec. 398, p. 827; Morrow's Assignee v. Bright, 20 Mo. 298; Green v. Bell, 3 Mo.App. 291; Gunn v. Todd, 21 Mo. 303.
Hall & Woodson for respondent.
(1) The court properly instructed the jury to disregard the items of the four notes in the counterclaim for the reason that there is no mutuality between the four notes described therein and the claim sued on by respondent, and the notes are not proper items of counterclaim or setoff in this case. Gimmett v. Hueben, 71 Mo.App. 291; Haseltine v. Thrasher, 65 Mo.App. 334; State to use Cowan v. Modrell, 15 Mo. 42; 2 Daniel on Negot. Instr., sec. 1422; 7 Am. and Eng. Ency. of Law, 372-373; In Rees v. Watts, 11 Excheq. (Eng.), 410; Patterson v. Patterson, 59 N.Y. 467; Jordan, Adm., v. Bank, 74 N.Y. 467; Taylor v. N. Y. City, 82 N.Y. 17; Woodward v. McGaugh, 8 Mo. 161; Mercien v. Smith, 2 Hill. 210; White v. Henley, 54 Mo. 592; Huse v. Ames, 104 Mo. 100; Richardson, Adm., v. Dreyfus, 64 Mo.App. 600; Patchen v. Wilson, 4 Hill. 57; Buckland v. Gallop, 105 N.Y. 456; Woolridge, Adm., v. Draper, 15 Mo. 471; R. S. 1889, secs. 193 and 8162. (2) We do not understand that the item of rents in the counterclaim is now in controversy, or that appellant is now complaining of the action of the court regarding that item. If it is in controversy and appellant does complain of the action of the court regarding the same, and if the court committed error in instructing the jury to disregard the item of $ 300 rent in the counterclaim, that error was cured by the remittitur of the whole amount of rent claimed and interest thereon. Ibers v. O'Donnell, 25 Mo.App. 120; Brooking v. Shinn, 25 Mo. 277; Eves v. Hoover, 43 P. 1120; Hansen v. Boyd, 161 U.S. 397; 16 Sup. Court Rep. 571; Hahn v. Cotton, 136 Mo. 216. (3) Awarding a new trial on one issue does not necessarily call for a new trial as to the other issues. This should never be done except when the ends of justice require it. Needles v. Burke, 98 Mo. 474; Oberbeck v. Mayer, 59 Mo.App. 297; R. S. 1889, sec. 2134. (4) The administrator Smith as an ancillary administrator is purely local and is confined to chattels having a particular situs here. 1 Woerner Amer. Law of Adm., sec. 158. And a debt has its situs at the domicil of the debtor. Neither was this point made in the case when it was on appeal here before. It was made for the first time in this case at the last trial thereof. Bealey v. Blake, Adm., 70 Mo.App. 229. (5) The entire counterclaim is one sounding in tort, and can not be maintained in this case. Wilkerson v. Farnham, 82 Mo. 677. This is another point that was made for the first time in this case at the last trial, and was not made or passed upon in the former appeal. Bealey v. Blake, Adm., 70 Mo.App. 229.
This cause was certified to this court by the Kansas City Court of Appeals, because one of the judges of that court was of opinion that the decision of that court in this case is in conflict with the decision of this court in Kelly v. Thuey, 143 Mo. l. c. 422 at 437-8, 45 S.W. 300.
Under section 6 of the amendment of 1884 to article 6 of the Constitution, it is the duty of this court, under such circumstances, to "rehear and determine said cause or proceeding as in case of jurisdiction obtained by ordinary appellate process."
The case is this: Norton Blake formerly lived in Buchanan county. He died at the residence of his son in Louisiana, on the 26th of March, 1891, but was in legal contemplation a resident of Buchanan county, Missouri, at that time. [Bealey v. Blake, 153 Mo. l. c. 657, 55 S.W. 288.] On the 28th of May, 1891, letters of administration upon his estate were granted by the probate court of Brown county, Kansas, to Richard Huxtable. The plaintiff herein, who was Blake's son-in-law, resided in that county, and had in possession, as agent for the deceased, certain personal property. The plaintiff presented a claim against the estate to the Kansas administrator based upon a note for $ 750, dated January 20, 1890, signed by Blake, which was allowed by the probate court in Kansas. On the 28th of July, 1892, the Kansas administrator paid the plaintiff thereon the sum of $ 511.92. The Kansas administration was closed July 28, 1893. In March, 1896, the plaintiff presented to the probate court of Buchanan county against the defendant, who as public administrator had charge of Blake's estate in Buchanan county, Missouri, a claim for the balance of $ 475.44 due on the same note for $ 750, on which the Kansas administrator had paid the $ 511.92. The defendant answered setting up that the plaintiff had not given full credit to Blake's estate for the indebtedness he owed it, and claimed that the plaintiff owed that estate eight hundred dollars for rent he had collected about March 1, 1891, from Blake's tenant for rent of Blake's farm in Buchanan county; also that the plaintiff had also in like manner collected $ 800 a year rent for said farm for the years, 1891, 2, 3, 4 and 5; and also that the plaintiff had collected, after Blake's death, four notes, aggregating, principal and interest, $ 1,684.85, which was made by Gilbert Blake to Norton Blake, none of which had the plaintiff accounted for or paid, and asked that these amounts be set off against the balance due plaintiff on said note. The case was tried in the probate court of Buchanan county, and afterwards on appeal in the circuit court the defendant obtained judgment against the plaintiff for $ 1,701. The plaintiff appealed to the Kansas City Court of Appeals, where the judgment of the circuit court was reversed and the cause remanded. [Bealey v. Blake's Adm'r, 70 Mo.App. 229.] The ground upon which the case was reversed was that the defendant had no interest in or claim to the rents, which the plaintiff had collected, that accrued after Blake's death, but that those rents followed the title to the land and belonged to Blake's heirs, and that an administrator, under the laws of Missouri, is entitled to only such rents after the death of the owner of the land as accrued after the administrator is ordered by the probate court to take charge of the land and collect the rents to pay the debts of the estate, and that such condition was not present in this case. Upon a trial anew, in the circuit court, the court gave a peremptory instruction to the jury to find for the plaintiff, and the jury accordingly returned a verdict for the plaintiff for $ 539, and disregarded all of the defendant's counterclaims. The circuit court was, as is conceded by both sides, about to grant the defendant a new trial, because it appeared that the plaintiff had collected $ 300 rent during Blake's lifetime, which under the decision of the Kansas City Court of Appeals, was a legitimate subject for a set off by the administrator, and to prevent the court from so doing, the plaintiff entered a remittitur for the $ 300 so collected, with interest, aggregating $ 420. This left a judgment for the plaintiff for $ 119, from which the defendant appealed to the Kansas City Court of Appeals. The defendant claimed in that court that under the prior decision of that court the right of the defendant to set off the $ 1,684.85, the proceeds of the four notes collected by the plaintiff had been adjudicated, and therefore the trial court erred in withdrawing that right from the consideration of the jury and in giving a peremptory instruction to find for the plaintiff. The plaintiff contended that the question of the defendant's right to set off this amount was not adjudicated on former appeal, and was open to discussion on this appeal, because, while that question was in the case then and was referred to by the Court of Appeals, it was not discussed by the plaintiff then, and the reversal was then asked simply for the error of the trial court in allowing the defendant to recover for rents collected by the plaintiff after Blake's death; and further, because it would be manifestly unjust to allow the prior decision to determine that question for the following reasons:
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