Bueker v. Aufderheide

• Decision Date: 23 January 1940
• Docket Number: No. 36133.,36133.
• Citation: 136 S.W.2d 281
• Parties: FRED BUEKER, JR., Trustee, Appellant, v. E.R. AUFDERHEIDE, W.E. HENNEMANN, H.A. KRAMME, EDWIN LANGENBERG, E.W. STEINBECK and A.F. BERGER.
• Court: Missouri Supreme Court

136 S.W.2d 281

FRED BUEKER, JR., Trustee, Appellant, v. E.R. AUFDERHEIDE, W.E. HENNEMANN, H.A. KRAMME, EDWIN LANGENBERG, E.W. STEINBECK and A.F. BERGER.

No. 36133.

Supreme Court of Missouri.

Division One, January 23, 1940.

Appeal from Osage Circuit Court. — Hon. R.A. Breuer, Judge.

APPEAL DISMISSED.

Frank G. Warren, John Peters and E.M. Zevely for appellant.

Paul B. Dessieux, Joseph T. Tate, James Booth and James L. Anding for respondents.

(1) Respondents' motion to dismiss ought to be sustained for the reasons therein given. Redler v. Travelers Ins. Co., 117 S.W. (2d) 241; Colorado Milling & Elevator Co. v. Rolla Wholesale Gro. Co., 102 S.W. (2d) 681. (2) When a person obtains a judgment of a court of competent jurisdiction in his behalf, the presumptions are all in favor of its validity, and the correctness of the means by which it was obtained, and the burden is on the one who alleges error to show it. The law has cast upon the appellant, not respondent, the onus of preparing a printed abstract of the entire record of the case, and this the appellant has not done in this case. If a party, relying on the provision that his opponent, if not satisfied, should file a further abstract, can cast the burden on his adversary by filing a wholly insufficient and garbled abstract, consisting of appellant's conclusions as to what the evidence shows, an emasculation and omission of vital parts of the record, it can readily be seen that the burden will be improperly on respondent to maintain his judgment and not on appellant to reverse it. (3) This court will not review the rulings of the court below in passing on a demurrer to the evidence where the abstract of the record fails to contain all of the evidence. Harrison v. Pounds, 190 Mo. 351.

BRADLEY, C.

The Farmers & Merchants Bank of Owensville, Missouri, closed on August 15, 1932. In his own behalf and as assignee of other depositors, plaintiff, on August 22, 1933, commenced this cause against the directors to recover $88,084.52. The cause is based on the claim that when the deposits involved were made, defendants knew that the bank "was insolvent or in failing circumstances."

It would seem that this cause came about from certain activities of one William R. Parker who apparently was a stranger in Owensville and thereabout. Of Parker, plaintiff testified: "Parker is the man from St. Louis who came to see me about this matter. I couldn't say exactly how many times he came out to see me. He was there several different times. He asked whether I was connected with the banks at Owensville and I asked him who he was representing — the depositors or the creditors? And he said he was representing the depositors. He had a good reliable man, Henry Borrenpohl, who represented him to me. Parker told me that we might recover some of this money. He had the typewritten part of this paper (the assignment) made out when he came to see me, but he didn't have it signed at that time and he asked me to sign the petition. I had never seen him before he came out with the assignment. I signed the petition. I don't know where Mr. Parker is now.

"We promised to pay him according to the contracts. We agreed in the contract to give Parker 16 2/3% of what we might recover. I did not have anything to do with employing the lawyers, the contract tells who has the right to employ them. Parker employed the lawyers. I can't recollect how many times Mr. Parker came out. I don't think that I mentioned any certain times. I went around with Parker several days to get people to sign this paper. I went with him to show him the road. He had a list of the people."

The paper called the contract, not dated, as it appears in the record, is as follows:

"We, the undersigned, hereby employ and authorize William R. Parker, doing business as the Banker's Audit Company to take such action as he may deem advisable to enable us to recover from the officers, directors and other persons liable for any and all losses that we have suffered or may suffer on account of the failure of the Farmers & Merchants Bank of Owensville, Missouri, to fully repay deposits made by us in said bank, and for his services in securing evidence, auditing, making collections, etc., we agree to pay him 16 2/3% of any amounts that may be recovered for us on said claims, whether by suit or compromise. We further authorize him to select and employ for us attorneys for the aforesaid purpose, and to agree for us and in our names to pay to said attorneys 16 2/3% of any amounts that may be recovered whether by suit or compromise, and if nothing is recovered, we shall owe said William R. Parker and/or said attorneys nothing for their services in this matter.

"For the purpose of preventing a multiplicity of suits, and for collection, we do hereby respectively assign our claims in the sum set opposite each of our names below to Fred Bueker, Jr., as trustee, and do authorize him to bring in his own name, and to act in all such cases in his own name, to the same...