Brinton v. Thomas
| Decision Date | 31 May 1909 |
| Citation | 119 S.W. 1016,138 Mo.App. 64 |
| Parties | T. J. BRINTON et ux., Respondents, v. A. J. THOMAS, Administrator, etc., Defendant; JESSIE WINTER BROWN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Moniteau Circuit Court.--Hon. William H. Martin, Judge.
AFFIRMED.
Judgment affirmed.
R. M Embry and Allen, Gabbert & Mitchell for appellant.
(1) The motion for a new trial should have been overruled. Motions for new trials must be filed within four days after the verdict if the term shall so long continue; and if not, then before the end of the term. This is mandatory. R. S. 1899 sec. 803; State v. Brown, 206 Mo. 501; In re Estate Pound, 91 Mo.App. 424. (2) Respondents had no right to amend their motion for a new trial after the expiration of four days following the verdict. Scott & Colbert v. Joffee, 125 Mo.App. 576; Bank v Porter, 148 Mo. 176; Mirrilees v. Wabash, 163 Mo. 470; Wabash v. Mirrilees, 182 Mo. 144. (3) The amending of any pleading and the filing thereof, and the presentation of such amended pleading to the court, and the court having considered it with reference to the merits of such pleading, constitute an abandonment of the original pleading. This is true with reference to petitions, answers and all motions known to pleading. 28 Cyclopedia, Vol. page 14; Hawkins v. Massie, 62 Mo. 552; Roberts v. State Insurance Co., 26 Mo.App. 92; Ingwersson v. Railroad, 205 Mo. 335. (4) One of the grounds for sustaining said motion as given by the court is that the jury were prejudiced by remarks made by counsel for appellant during the trial. This ruling of the court cannot be considered by this court for the reason that no exceptions were saved as to any remarks made by counsel and this court will not consider such ruling in the absence of such exceptions being saved. State v. Walker, 192 Mo. 253; State v. Jones, 194 Mo. 268; State v. Murphy, 201 Mo. 696; State v. Brooks, 202 Mo. 118; State v. Jones, 194 Mo. 268. (5) Another assignment of error by the court in sustaining the motion is that the court erred in sustaining the appellant's motion to correct the judgment. That is to say, the court sustained a motion of appellant to correct the judgment and at the same term of court and upon the same day sustained the contention of the respondents that he committed error by his ruling. Hackworth v. Zeitinger, 48 Mo.App. 32.
Corum & Quigley and Moore & Williams for respondents.
(1) When the trial court grants a new trial because the verdict is against the evidence, and the weight of the evidence, the appellate court will presume that the discretion of the trial court was properly exercised, and will not examine the evidence unless it appears that such action was arbitrary and unreasonable. Richardson v. Brick Co., 122 Mo. 529; McCarty v. Transit Co., 192 Mo. 396; Young v. Ruhwedel, 119 Mo.App. 231; Herndon v. Dewey, 175 Mo. 116. And the new trial may be granted on its own motion. Thompson v. Thompson, 109 Mo.App. 462; Northrup v. Diggs, 115 Mo.App. 91; Nulton v. Croskey, 111 Mo.App. 22; Head v. Randolph, 83 Mo.App. 284; Harkness v. Jarvis, 110 Mo.App. 277; Harkness v. Jarvis, 182 Mo. 131; Seyp v. Hesse, 88 Mo.App. 72. (2) The account presented in the probate court by plaintiffs against the estate of Mrs. Parrish was properly presented as a joint account, being for joint services. Lillard v. Wilson, 178 Mo. 159. (3) The note from the plaintiff, T. J. Brinton, to Mrs. Parrish, though his individual debt, was properly credited on the account presented against the estate, otherwise plaintiffs could not have taken and subscribed to the oath required by second clause of section 195, Revised Statutes, 1899. Rankin v. Perry, 5 Mo. 501. If the credit had not been given the administrator could have filed the note as a set-off. Revised Statutes 1899, secs. 194, 4487; Kent v. Rogers, 24 Mo. 306; Mortland v. Halton, 44 Mo. 58; State ex rel. v. Hudson, 86 Mo.App. 501. (4) And if plaintiffs had no right to make such addition to their motion, and if the court had no authority to permit such addition or amendment, then such addition was unauthorized but did not affect the remainder of the motion. Yates v. Shanklin, 85 Mo.App. 358; Taylor v. Railroad, 163 Mo. 190. (5) The amendment of the judgment, on application of the appellant, so as to render a judgment of $ 3,048.65 against the plaintiff Nettie Brinton, a married woman, for the amount of a note which she had never executed and to which she was not a party, was a palpable error, appearing on the face of the record and it was the duty of the trial court to set aside its judgment, for that reason as soon as its attention was called to it. (6) The judgment must be in accordance with the pleadings and proofs, and no other can be lawfully rendered by the court. Cass v. Ross, 81 Mo. 84; Daugherty v. Atkins, 81 Mo. 411; Reed v. Bott, 100 Mo. 67; Baldwin v. Whaley, 78 Mo. 186; Hatchett v. Emerson, 73 Mo.App. 289.
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 six thousand dollars 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 four thousand dollars 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:
able to Mrs. Ann Parrish, signed by T.
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 movant 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, towit, 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, towit:
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