Beatty v. Zeigel

• Decision Date: 07 December 1942
• Citation: 167 S.W.2d 400,237 Mo.App. 1134
• Parties: Nora M. Beatty, Appellant, v. Roland A. Zeigel and S. H. Ellison, Respondents
• Court: Kansas Court of Appeals

167 S.W.2d 400

237 Mo.App. 1134

Nora M. Beatty, Appellant, v. Roland A. Zeigel and S. H. Ellison, Respondents

Court of Appeals of Missouri, Kansas City

December 7, 1942

Appeal from Schuyler Circuit Court; Hon. Walter A. Higbee, Judge.

Appeal dismissed.

May & May for appellant.

(1) The court erred in overruling plaintiff's request for a directed verdict in her favor. Cox v. Higdon, 67 S.W.2d 547; Long v. Moon, 107 Mo. 339; Avery v Fitzgerald, 94 Mo. 207; Ettlinger v. Kahn, 134 Mo. 497; Beheret v. Meyers, 240 Mo. 75-76; State to Use of Early v. LeFaivre et al., 53 Mo. 470; The County of Johnson v. Wood, 84 Mo. 489; Ford v Dyer, 148 Mo. 528. There is no evidence upon which to base defendants' testimony that George Ross agreed to pay them a $ 2100 fee. Niedt v. Niedt, 95 S.W.2d 868; Davis v. Hall, 90 Mo. 660; Spears v Ledergerber, 56 Mo. 465; Parr v. Railroad, 184 S.W. 1169; Shank v. Railroad, 11 S.W.2d 1063; State v. Clifford, 124 Mo. 498; Semple v Atkinson, 64 Mo. 504; Walden v. Bolton, 55 Mo. 405; 7 C. J. S., p. 850; Henderson v. Cape Trading Co., 289 S.W. 334; MacFarland v. MacFarland, 211 S.W. 23, 27; State v. Mo. Utilities Co., 53 S.W.2d 399; Ornellas v. Moynihan, 16 S.W.2d 1011; Prudential Ins. Co. v. German Ins. Co., 105 S.W.2d 1001, 1008; Cadematori v. Gauger, 160 Mo. 352; St. Louis Perfection Tire Co. v. McKinney, 245 S.W.2d 1100, 1103; Ellenburg v. Edward Love Realty Co., 59 S.W.2d 625; Ruchert v. Moore, 295 S.W. 795; Ill. Standard Mtg. Corp. v. Collins, 63 S.W.2d 342. The peremptory instruction should have been given for the further reason this is an action for money had and received. Bank v. Bank, 244 Mo. 554; Sunderland v. Hackney Mfg. Co., 192 Mo.App. 90; Pearson v. Carson, 69 Mo. 550; Fox v. Windes, 127 Mo. 502; Wilbur v. Wilbur, 201 S.W. 387; Hamburger v. Hirsh, 212 S.W. 49; State ex inf. v. Mo. Utilities Co., 53 S.W.2d 394; Waugh v. Williams, 119 S.W.2d 223; Reichenbach v. Ellerbe, 115 Mo. 588. (2) The court erred in giving to the jury, of its own motion, Instruction No. 1. Sinnamon v. Moore, 161 Mo.App. 168; Small v. Ice Co., 179 Mo.App. 464; Wood Machine Co. v. Bobbst, 56 Mo.App. 433; Bank v. Currie, 44 Mo. 91; Steinwender v. Creath, 44 Mo.App. 366; Dugdale Packing Co. v. Louden, 160 S.W.2d 832; McKnight v. Hudson, 116 Mo.App. 551. (3) The court's Instruction No. 2 was erroneous and prejudicial. Schaper v. Smith, 56 S.W.2d 820; Indiana Trust Co. v. Ins. Co., 89 S.W.2d 97; Continental Casualty Co. v. Pleitsch, 111 S.W.2d 956; Shults v. Jones, 9 S.W.2d 248, 250; Wheat v. Road District, 59 S.W.2d 88; Murray v. Central Bank, 40 S.W.2d 724; Indiana Truck Co. v. Ins. Co., 89 S.W.2d 97; York v. Farmers Bank, 105 Mo.App. 127; Crigler v. Duncan, 121 Mo.App. 381. (4) The court erred in giving to the jury Instruction D-1 requested by defendants. Steinwender v. Creath, supra; Gordon v. Andrews, 2 S.W.2d 809. Instruction D-2 was erroneous and prejudicial. See citations under D-1. The court erred in giving Instruction D-3. Steinwender v. Creath, 44 Mo.App. 366; Gordon v. Andrews, 2 S.W.2d 809. The court erred in giving to the jury Instruction D-4. See citations under (1). The court erred in giving Instruction D-5. Mayes v. Mayes, 16 S.W.2d 1; Kidder v. Milner, 99 Mo. 145; Neal v. Curtis Mfg. Co., 41 S.W.2d 543; Bruton v. Ry. Co., 16 S.W.2d 604; Rule No. 35, Supreme Court of Mo. entitled "Canons of Ethics." Laughlin v. Boatmen's Nat. Bank, 163 S.W.2d 765-6; 5 Am. Jur., secs. 45, 56; 7 C. J. S., Attorney and Client, sec. 125, p. 957. See Canons of Ethics, Revised Rules of the Supreme Court of Mo., pp. 17-35; 62 Am. Bar Assn. Rep. 1105; In re Thomasson's Estate, 347 Mo. 748, 757, 148 S.W.2d 757, 762; 49 A. L. R. 410; In re Thomasson's Estate, 346 Mo. 911, 144 S.W.2d 79; Gillham v. Met. St. R. Co., 282 Mo. 118, 221 S.W. 1; Curry v. Dahlberg, 110 S.W.2d 746; Curry v. Dahlberg, 112 S.W.2d 345. (5) The court erred in orally instructing the jury during the trial concerning the Code of Ethics. Vaughn v. May, 9 S.W.2d 156, 159; Kribs et ux. v. Jefferson City Light, Heat & Power Co., 215 S.W. 762, 763; Belk v. Stewart, 160 Mo.App. 706, 709; Trial, 64 C. J. 90-91. It is the law that the court shall instruct the jury only in writing. Fenton v. Hart, 73 S.W.2d 1041-1042; Instructions, sec. 1118, R. S. Mo. 1939. (6) The court erred in sustaining defendants' objection to questions asked Andrew Ellison concerning the endorsement on the back of the check. Gibson v. Met. Life Ins. Co., 147 S.W.2d 193; Winegar v. Railroad, 163 S.W.2d 357, 367; Henry v. First Nat. Bank, 115 S.W.2d 133; Gibson v. Met. Life Ins. Co., 147 S.W.2d 193; Bartlett v. K. C. Pub. Serv. Co., 160 S.W.2d 741; Union Jack of Kirksville v. Wheat, 58 Mo.App. 11; Peck v. Ritchie, 66 Mo. 118; Barz v. Fleischmann, 271 S.W. 361; Smith v. O'Bryant, 181 S.W. 123; Supply Co. v. Metcalf, 174 Mo.App. 555; Werth v. Ollis, 61 Mo.App. 401. (7) The court erred in sustaining objection of defendants to and excluding the letter of M. D. Campbell, one of defendants' attorneys. Biener v. St. Louis Pub. Serv. Co., 159 S.W.2d 780, 783 and 786. See authorities cited under (6). (8) The court erred in sustaining objection of defendants and excluding final report and settlement of Kansas City Title and Trust Co., under the trust agreement in question, Plaintiff's Exhibit 10. (9) The court erred in sustaining the objection of defendants and excluding the letter of Columbia National Bank, successor trustee, showing the amount received by Martha Jane Ross under said trust fund agreement. See citations under subdivision (7). (10) The court erred in refusing to set aside the verdict because the verdict is against the law and the evidence and is manifestly the result of ignorance, partiality, passion or prejudice on the part of the jury. Reichenbach v. Ellerbe, 115 Mo. 595; Long v. Moon, 107 Mo. 339; Avery v. Fitzgerald, 94 Mo. 207; Ettlinger v. Kahn, 134 Mo. 497; Continental Cas. Co. v. Pleitsch, 111 S.W.2d 957.

Allen Rolston, Earl Fogle, Waldo Edwards, M. D. Campbell and E. M. Jayne for respondents.

No brief for respondents.

OPINION

Cave, J.

This is an action for money had and received. A trial was had in the Circuit Court of Schuyler County, resulting in a verdict and judgment for respondents (defendants), and plaintiff has appealed to this court.

We are immediately confronted with a motion to dismiss the appeal because (1) appellant's statement of the case does not comply with our rules; (2) the abstract fails to show the record entry showing the filing of the petition or the answer or the reply; (3) the statement or record that a motion for new trial was filed and that appeal was granted to this court does not appear in the record proper, but is mentioned only in the bill of exceptions; and (4) appellant's statement does not show the place in the record where any of the matters referred to can be found except in two instances where it refers to pages 106 and 263.

It appears that within ten days after the service of the copy of appellant's abstract upon respondents, they, in obedience to the provisions of Rule 15 of this court, filed their written objections and the reasons therefor, questioning the sufficiency of the abstract in certain respects, as above noted, and asking that the appeal be dismissed or judgment affirmed. A copy of such objections and the reasons therefor was served on the appellant on September 25, 1942, and instead of asking leave to amend her abstract, she elected to stand upon the abstract she already prepared, and on October 4, filed suggestions in opposition to respondents' objections and motion. Thus the matter stood when the case was argued and submitted on October 8th, with respondents' objections to the abstract and motion taken with the case. Then on October 19th, some ten days after the cause had been argued and submitted, appellant, for the first time, asked leave "to file certified copy of the record entries in the Circuit Court of Adair County and the Circuit Court of Schuyler County in the above entitled cause", with such records attached to said motion. Such motion is pending, undetermined, and is likewise to be acted upon in connection with the disposition of the appeal.

Appellant's motion asking leave to file the record entries of the Circuit Courts of Adair and Schuyler Counties, which motion was filed on October 19th, and some ten days after the cause had been argued and submitted, must be overruled. It comes too late. The reasons therefor are fully and ably discussed by the St. Louis Court of Appeals in the case of Brown v. Reichmann, 164 S.W.2d 201, and we need not lengthen this opinion to repeat such reasons.

Appellant's abstract of the record begins by reciting: "This suit was instituted in the Circuit Court of Adair County Missouri, to the October Term, 1940. Change of venue was taken to Schuyler County. The following are the pleadings (omitting captions and signatures):" Then follows the petition, the answer, and the reply. Then we find a record of a trial of cause in the Schuyler County Circuit Court, resulting in a verdict and judgment for plaintiff, and thereafter, defendants' motion for new trial was sustained, and then the record of another trial in said Circuit Court, resulting in a hung jury, which two records have no place in the record proper. Then the record discloses that the trial was had beginning on the 16th day of May, 1942, resulting in a verdict for the defendants and a judgment entered on that verdict. Then immediately follows this: "PLAINTIFF'S BILL OF EXCEPTIONS", in bold, black face type, and then follows some 400 pages of evidence, instructions, motions, etc. The record proper does not show that a motion for new trial was filed and overruled; that an appeal was allowed therefrom to this court, and that the bill of exceptions...