Berry v. Henslee
| Decision Date | 31 July 1866 |
| Citation | 38 Mo. 392 |
| Parties | W. D. BERRY, Respondent, v. B. W. HENSLEE et al., ADM'RS OF G. P. SHACKELFORD, DEC'D, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court.
T. A. Sherwood, for appellant.
The only issue between respondent and appellants was whether the estate of Shackelford was indebted to respondent. All claims against the estates of decedents are based upon the fact that the claimant has given credit to the estate for all payments and offsets to which it is entitled--R. C. 1855, § 13, p. 154. Any evidence, then, tending to show that the estate of Shackelford was not indebted to respondent in the amount which he claimed, after allowing all just credits, &c., was perfectly competent, and should have been admitted.
Our statute provides (R. C. 1855, p. 175, § 7) that on appeals being taken from probate courts to the Circuit Court, that the trial shall be d novo. It is true, that no matter of mere set-off can be offered in an appellate court which was not offered in the court below; but that rule does not confine a defendant to the same defence on appeal as that at first made. Anything may be offered in the appellate court which tends either to defeat the plaintiff's action, or to diminish the amount sought to be recovered, although not previously offered--Hall v. Mills, 11 Mo. 215.
John S. Phelps, for respondent.
I. The set-off and evidence in relation thereto could not be received. No set-off was filed in the Probate Court, none was filed in the Circuit Court. A set-off is a cross action; and as defendants had not claimed that Berry was indebted to the estate, the court properly refused to hear the testimony--R. C. 1855, pp. 153, 89, 175, § 7.
II. The evidence in relation to the set-off, if received, would have operated as a surprise to Berry.
Respondent presented his claim for allowance in the Probate Court of Greene county against the estate of G. P. Shackelford, deceased, for work and labor done and materials furnished, amounting to the sum of $311.50. Judgment was rendered by the court in his favor for that amount, and the administrator appealed to the Circuit Court. On the trial in the Circuit Court, the respondent again proved up his account; and after he had closed his testimony, the administrator, without any notice to the opposite party or filing the same in court, offered for the first time as a defence to the respondent's account, and in diminution of his claim, a note made by respondent to decedent, and also a deed of trust executed by respondent to the same, with an offer to prove that the note on which it was founded was lost or mislaid. This evidence the court excluded, and then affirmed the judgment of the Probate Court. The administrator appealed from the decision of the court below; and now contends, that, as on appeal from the Probate to the Circuit Court the trial in the latter must be de novo, the evidence was legitimate and competent, and should have been admitted.
In appeals from justices of the peace, the statute prohibits a party from using a set-off in the Circuit Court which was not relied on before the justice; though, as the trial is anew, any other...
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Hall v. Greenwell
...of $ 400 was filed. No pleading filed by defendant. 31 Cyc., p. 238; State ex rel. v. Henderson, 86 Mo. App., l. c. 488; Berry v. Shackelford, 38 Mo. 392; case, 307 Mo. 98; Egger case, 225 Mo. 116. Appellant contends that the postnuptial agreement is void and does not bar the rights given h......
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In re Thomasson's Estate
...they should be stated in writing recognize that other matters of defense generally need not be pleaded in writing. See Berry v. Shackelford (1866), 38 Mo. 392, 394. probate court denied claimant's demand. If denied with the mutual consent of the parties, then claimant is in no position to t......
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Bennett v. Boatmen's Natl. Bank, 39722.
...they should be stated in writing recognize that other matters of defense generally need not be pleaded in writing. See Berry v. Shackelford (1866), 38 Mo. 392, 394. The probate court denied claimant's demand. If denied with the mutual consent of the parties, then claimant is in no position ......