Boden v. Johnson

• Citation: 47 S.W.2d 155,226 Mo.App. 787
• Parties: GEORGE BODEN, GUARDIAN, ETC., RESPONDENT, v. JOSEPHINE B. JOHNSON, APPELLANT
• Decision Date: 01 February 1932
• Court: Kansas Court of Appeals

47 S.W.2d 155

226 Mo.App. 787

GEORGE BODEN, GUARDIAN, ETC., RESPONDENT, v. JOSEPHINE B. JOHNSON, APPELLANT

Court of Appeals of Missouri, Kansas City

February 1, 1932

Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.

AFFIRMED.

Judgment affirmed.

Thos E. Deacy and Jacobs & Henderson for respondent.

McAllister Humphrey, Pew & Broaddus for appellant.

OPINION

ARNOLD, J.

--This is an appeal from a final decree and judgment of the circuit court of Jackson county, Missouri, at Kansas City. The cause was before us on a former appeal which we dismissed because premature. Our opinion therein is reported in 23 S.W.2d 186, and contains a full and complete statement of facts of the case.

Plaintiff filed his "amended bill in equity" on June 20, 1928, stating he is the duly qualified and acting guardian of the estate of Frederick G. Boden, minor, and that he brings this action for and in behalf of said minor. That Frederick G. Boden is the owner of an undivided one-half interest in certain described real estate; that said property is now in the hands of defendant, who, for three years past has collected the rents thereon and has failed and refused to account to said minor for his interest therein; that demand for an accounting has been made and refused. The bill prays that defendant be required to make an accounting of the income collected and received and of the income which she has allowed Earl Johnson (her husband by a second marriage) to collect and retain, and that plaintiff, as guardian, have and recover from defendant such sum as the court might determine was the interest of the minor, Frederick G. Boden, in the income collected, received and retained by defendant or the said Earl Johnson; that defendant be removed as trustee for said Frederick G. and Loretto Boden, and a new trustee be appointed in her place; that a receiver be appointed to take charge of and manage said property, and for such other and further relief as to the court may seem just and proper.

The answer of defendant states that by the terms of a contract entered into between her and plaintiff on October 6, 1921, it was expressly agreed that defendant should not be required to account for any income or moneys received according to the terms of said contract and that no action for an accounting should be brought against her.

The cause came on for trial on September 19, 1928, and thereafter an interlocutory order was entered requiring defendant to make an accounting. It was from this decree and judgment the former appeal was taken, with result above indicated.

Thereafter, and on May 2, 1930, the cause came on for further hearing, both parties being present in person and by attorneys. It was agreed defendant had not complied with the order of the court as to paying any part of the income from the property to plaintiff. Counsel for defendant suggested:

"The question is whether or not she has anything left over . . . after taking care of the daughter and paying the upkeep of the property; and as I understand it now, he is to make a showing--although I am going to raise the point at the end of it of the fact that this bill doesn't state any equity--that if the plaintiff has any cause of action in a suit at law for breach of the contract we are ready to go ahead and make a showing to the court on the merits of the case."

The court then proceeded to hear evidence relative to amounts received from the rental of the property and expenditures thereof which it is unnecessary to set out in detail here. It was shown that the boy, Frederick, left his mother's home soon after her remarriage, and thereafter lived with his father. On the first hearing, there was no showing as to the amount of income received by defendant, and no accounting thereof was made. At that hearing it was shown that since her second marriage, defendant and her husband, Johnson, had collected the rents from said property and had deposited and maintained their funds in a joint bank account. We find the evidence at the second trial sufficiently substantial to support the decree of the court hereinafter set out. Defendant testified from books and accounts kept by her and her husband, referring occasionally to rentals from the real estate in question as "the children's money." At the close of the evidence, the following occurred:

"MR. BROADDUS: I want to make an objection--the defendant demurs to the bill in this case on the ground that it sets forth no facts constituting an action in equity; that if the plaintiff has any cause of action against this defendant under the deed and under the contract it is an action at law on the contract. The defendant also makes the objection to the entire proceedings that this plaintiff who is a minor under the law of Missouri cannot maintain an action either at law or in equity against his mother to compel her to maintain and support him, there being no law or statute in this State which authorizes any such proceeding. And for another reason, that under the deed and the contract the proceeds derived from these two storerooms belong to the defendant Josephine Boden and will, until October, 1936, and that this suit is prematurely brought. The defendant again renews her objection that under the contract it is specifically provided that she is not entitled--she be not required to account. That is all.

"THE COURT: Well, I have a lot of confidence in Mr. Broaddus as an attorney and I am afraid of his objections, and at the same time I have the bull by the horns and if necessary to enforce what I think is justice here, I will appoint a receiver; and I will ask counsel to prepare an order upon the defendant to pay the guardian of plaintiff one thousand dollars as for an accounting, and that she henceforth pay to the plaintiff monthly one-half of the net income from the real estate involved.

"MR. BROADDUS: That is the judgment of the court?

"THE COURT: Yes. I am reserving jurisdiction in the matter, too, because I may appoint a receiver."

Thereafter, on May 5, 1930, the court entered the following decree and judgment:

"Now on this day the above entitled cause comes on for trial; comes the plaintiff in person, and by his attorney, and also comes the defendant in person and by her attorney and the court having heard the testimony offered by the parties and statements of counsel, and being fully advised in the premises, finds that the interlocutory decree heretofore entered in this cause should be made final; and the court further finds that Frederick G. Boden is the owner of an undivided one-half interest in and to the following described real estate, to-wit:

"All of Lot Four (4), Block Four (4) Ontario, a subdivision of land in Kansas City, Jackson county, State of Missouri,

"And that on the second day of February, 1928, by interlocutory judgment entered in this cause the defendant was ordered and directed to make an accounting in this cause of action of the income collected and received from said property hereinbefore described, to the date of the hearing of this cause of action; and the court further finds that said defendant has failed to do so; and the court from the evidence offered by the parties hereto finds that the defendant herein is indebted to the plaintiff in the sum of one thousand dollars by reason of income collected and received from said property, and not applied to the use and benefit of the said Frederick G. Boden, and that by reason thereof, plaintiff should recover of and from the defendant said sum of one thousand dollars; that the court further finds that the plaintiff herein, until the said Frederick G. Boden shall arrive at the age of twenty-one years, is entitled to have and receive one-half of the net income from said property.

"It is therefore considered, ordered, adjudged and decreed that the plaintiff herein have and recover of and from the defendant the sum of one thousand dollars in cash, together with the costs of this action, and that execution issue therefor.

"It is further adjudged and decreed that the defendant herein pay over to the plaintiff, as guardian and curator of the estate of Frederick G. Boden, one-half of the net income which may be derived from said property from this date until the said Frederick G. Boden shall arrive at the age of twenty-one years."

Defendant's motion for a new trial was overruled and she appeals.

While there are ten alleged errors enumerated in the motion for a new trial, they are fully covered in the points and authorities under five subheadings which will be discussed in order.

The first point urged in support of the appeal is that plaintiff's bill does not state facts sufficient to constitute a cause of action at law or in equity, and the court erred in not dismissing the suit. It is insisted that in its final analysis, this is an action by a minor to compel its parent to support it, because the bill alleges said "Josephine B. Boden should have the use of the income from said real estate until the 29th of October, 1936," and that the income belonged to her and to no one else. It is argued that although defendant did contract and agree to support the younger Boden out of that income, she would be in the same position as a father upon whom the law fixes the primary duty to support his child; yet the law of the State is that a minor child has no right of action in equity against its father to compel him to maintain and educate it during its minority. [Citing Huke v. Huke, 44 Mo.App. 308; Worthington v. Worthington, 212 Mo.App. 216, 253 S.W. 443; Glaze v. Hart, 36 S.W.2d 684, 686.] That this is the law is conceded by plaintiff but it is said plaintiff's action is not an attempt to compel the mother to support a minor child, but is to compel ...