Brinton v. Thomas

• Citation: 119 S.W. 1016,138 Mo. App. 64
• Parties: BRINTON et al. v. THOMAS et al.
• Decision Date: 31 May 1909
• Court: Court of Appeal of Missouri (US)

119 S.W. 1016

138 Mo. App. 64

BRINTON et al. v. THOMAS et al.

Kansas City Court of Appeals. Missouri.

May 31, 1909.

1. NEW TRIAL (§ 152) — PLEADING TO PROCURE—TIME FOR APPLICATION—AMENDMENT OF MOTION.

Rev. St. 1899, § 803 (Ann. St. 1906, p. 767), provides that all motions for new trials shall be made within four days after the trial, if the term shall so long continue, and if not, then before the end of the term. Held, that such statute is mandatory, and that neither the motion for a new trial, nor an amendment thereto, can be filed after the expiration of four days from the verdict, and where a motion is filed within the proper time, an amendment filed after the expiration of such time, has no effect on the original motion.

2. NEW TRIAL (§ 72) — GROUNDS — VERDICT CONTRARY TO EVIDENCE.

If the trial judge on weighing the evidence is convinced that the verdict is not supported by the weight of the evidence, he should set it aside.

3. APPEAL AND ERROR (§ 977) — REVIEW — QUESTIONS OF FACT ON MOTIONS FOR NEW TRIAL.

The exercise of the discretion of the trial court in setting aside a verdict and granting a new trial will not be disturbed on appeal, except for abuse.

4. EXECUTORS AND ADMINISTRATORS (§ 221)— CLAIMS—IMPLIED CONTRACT—EVIDENCE.

A contract by an invalid mother with a married daughter for reasonable compensation to the daughter for caring for her mother may be implied from the fact that services were rendered under an agreement or mutual understanding that they were not gratuitous, and the fact that the daughter's husband gave the mother a note for money he owed her at the time when the daughter and her husband claimed that the mother owed them jointly a sum in excess of the amount specified in the note is not conclusive evidence of the absence of an understanding on the part of the mother to pay for the care given her.

5. HUSBAND AND WIFE (§ 221) — ACTIONS — PARTIES—JOINDER.

Where services are jointly rendered by a husband and wife, it is proper for them to join as plaintiffs in an action to recover compensation for such services.

6. EXECUTORS AND ADMINISTRATORS (§ 221)— ACTIONS—ADMISSIBILITY OF EVIDENCE.

In an action by a daughter and her husband to recover from the estate of her mother compensation for services rendered the mother, plaintiffs admitted an indebtedness evidenced by a note given the mother by the husband. Held, that evidence offered by plaintiffs tending to show how the indebtedness originated was inadmissible.

7. TRIAL (§ 120)—ARGUMENTS OF COUNSEL— COMMENTS ON MATTERS NOT IN ISSUE.

In an action against an administrator by a daughter of the intestate and her husband, plaintiffs admitted a claim against them, evidenced by a note signed by the husband, and were not permitted to introduce evidence tending to show how the indebtedness was incurred. Held, that counsel for defendant should not have been permitted to discuss the reason for such indebtedness in his argument to the jury.

8. HUSBAND AND WIFE (§ 238)—JUDGMENT— PARTIES.

In an action by a husband and wife on a joint demand, in which they admitted a claim by defendant, evidenced by a note signed by the husband, a judgment for the amount of such note should not be rendered against both, but should be against the husband only.

Appeal from Circuit Court, Moniteau County; William H. Martin, Judge.

Action by T. J. Brinton and another against A. J. Thomas, administrator of Susan A. Parrish, deceased, and another. Judgment for defendants in the circuit court, on appeal from the probate court, and from an order granting a new trial, defendants appeal. Affirmed.

R. M. Embry and Allen, Gabbert & Mitchell, for appellants. Corum & Quigley and Moore & Williams, for respondents.

JOHNSON, J.

Plaintiff Nettie Brinton and appellant Jessie Winter Brown were the daughters of Judge Thomas H. Parrish and Susan A. Parrish. At the time of his death, which occurred in 1897, Judge Parrish was judge of the circuit court of Buchanan county. His widow and his said daughters were his sole survivors. He left personal property, including life insurance, of the value of about $6,000 and a homestead in St. Joseph, all of which he devised by his will to his widow. Mrs. Parrish died intestate at Tipton, Moniteau county, November 19, 1907, leaving her said daughters her sole heirs. Her estate consisted of personal property valued at about $4,000, and the real estate in St. Joseph left by her husband. From July, 1901, to the day of her death, Mrs. Parrish lived with the Brinton family, and her son-in-law, T. J. Brinton, acted as her agent in business affairs. In 1902, while living with the Brintons at Kansas City, she suffered a stroke of apoplexy, accompanied by paralysis of her left side, and, thereafter, to her death, was an invalid. After her death letters of administration were issued by the probate court of Moniteau county to A. J. Thomas, who qualified as administrator, and took charge of her estate. Among her papers the administrator found a promissory note of $3,059.60, dated March 18, 1907, executed to Mrs. Parrish by plaintiff T. J. Brinton. This action was begun in the probate court of Moniteau county by plaintiffs T. J. and Nettie Brinton on the following demand:

                The Estate of Susan A. Parrish, Deceased, to
                    T. J. Brinton and Nettie Brinton, Dr
                To board, washing, &c., for 26 weeks
                  from July 1, 1901, to January 18
                  1902 at $4.00 per week ..........  $  104 00
                To board, washing, nursing and care
                  of said Susan A. Parrish, while a
                  helpless invalid, from January 18
                  1902, to November 19, 1907, being
                  five years and ten months, or 306
                  weeks at $25.00 per week ........   7,650 00
                To two tickets to St. Joseph and one
                  ticket to return .................     10 95
                                                     _________
                                                     $7,764 95
                Credit by note dated March 18, 1907
                  payable to Mrs. Ann Parrish, signed
                  by T. J. Brinton, for balance due   3,059 60
                                                     _________
                                                      4,705 35
                     Balance due.................... $4,705 35
                

No answer was filed in the probate court, but the allowance of the demand was resisted by Mrs. Brown, the remaining heir. Plaintiffs were successful in that court, and Mrs. Brown appealed to the circuit court, where the cause was tried to a jury at the May term, 1908. The verdict returned May 7th was "for the defendant in the sum of three thousand forty-eight ($3,048.65) dollars and sixty-five cents." On the same day, the court entered judgment on this verdict as follows: "It is therefore by the court ordered, adjudged, and decreed that the defendant A. J. Thomas, administrator of the estate of Susan A. Parrish, deceased, have and recover of the plaintiff T. J. Brinton the sum of three thousand forty-eight 65/100 dollars ($3,048.65) and have execution therefor, and further that said administrator have and recover from the plaintiffs the costs in the case, and have thereof execution." On the next day at the same term of court plaintiffs filed a motion for a new trial, assigning a number of errors as grounds for the relief asked. On August 1st following, and during an adjourned session of the May term, Mrs. Brown filed a motion to correct the judgment, the object of the movent being to have judgment rendered in favor of the administrator against Mrs. Brinton, as well as against her husband, T. J. Brinton. This motion and the motion of plaintiffs for a new trial were taken under advisement until the following term of court. At that term the court sustained Mrs. Brown's motion, and rendered the following judgment: "It is therefore by the court ordered, adjudged, and decreed that the defendant, A. J. Thomas, administrator of the estate of Susan Ann Parrish, deceased, have and recover of the plaintiffs, T. J. Brinton and Nettie Brinton, the sum of three thousand forty-eight 65/100 dollars ($3,048.65), and the costs in the case, and have thereof execution."

The proceedings following the rendition of this judgment thus are stated in the record: "That thereafter, to wit, the said 8th day of September, 1908, the plaintiffs, by their counsel—leave of court first had and obtained—amended their motion for a new trial heretofore filed in this cause, which amended motion for a new trial is as follows, to wit: `Come now the plaintiffs, and move the court to set aside the verdict of the jury in the above cause and grant them a new trial, for the following reasons: First, because the verdict is against the law as declared by the court; second, because the verdict is against the evidence, and against the weight of the evidence; third, because instructions numbered _____ and _____, given by the court at request of appellant against the objection of plaintiffs, are incorrect; fourth, because the verdict of the jury against the plaintiffs, not allowing them anything for six years' service in boarding, nursing, and caring for deceased, shows said verdict to be the result of bias and prejudice on the part of...