Bueker v. Aufderheide

• Decision Date: 14 December 1937
• Docket Number: No. 35037.,35037.
• Citation: 111 S.W.2d 131
• Parties: BUEKER v. AUFDERHEIDE et al.
• Court: Missouri Supreme Court

111 S.W.2d 131

BUEKER v. AUFDERHEIDE et al.

No. 35037.

Supreme Court of Missouri, Division No. 1.

December 14, 1937.

Appeal from Circuit Court, Osage County; Ransom A. Breuer, Judge.

Action by Fred Bueker, Jr., trustee, against E. R. Aufderheide and others. From an order overruling plaintiff's motion to set aside his involuntary nonsuit, the plaintiff appeals.

Appeal dismissed.

Frank G. Warren, of Kansas City, and John Peters and E. M. Zevely, both of Linn, for appellant.

James Booth, of Pacific, Joseph T. Tate, of Owensville, and Paul Dessieux, of Linn, for respondents.

FERGUSON, Commissioner.

On August 16, 1932, the Farmers & Merchants Bank of Owensville (Missouri) was closed and its "affairs and assets" placed "under the control of" the Commissioner of Finance. Section 5316, R.S. 1929, Mo.St.Ann. § 5316, p. 7547. Thereafter, on August 22, 1933, this action was commenced. The petition is in 85 counts. Plaintiff as an assignee and trustee seeks recovery against defendants for deposits made by his assignors and himself aggregating $88,084.52. The defendants are alleged to have been "officers, managers, and directors" of said bank at the time the deposits involved were made. It is further alleged that at the time each of said deposits was made the "bank was insolvent or in failing circumstances, which fact was known to each and all of the defendants," but that "with knowledge of such insolvency" the defendants received or assented "to the reception" of the deposits sued for. At the close of plaintiff's evidence, he took "an involuntary nonsuit with leave to move to set the same aside." Such motion was thereafter filed and overruled, whereupon plaintiff appealed.

Both the short form transcript and appellant's abstract of the record show the following relative to the nonsuit and the appeal herein:

"The cause was tried on the 15th, 16th, 18th and 19th days of February, 1935, during the regular February Term, and afterwards, and during said term, to-wit: on the 19th day of February, 1935, at the close of all the evidence on the part of plaintiff, the court, at the request of defendants, gave the following instruction to the jury:

"`The court instructs the Jury that under the pleadings and the evidence in this case you must find the issues for defendants on all the counts of the petition.'

"Whereupon, and immediately after said announcement by the Court plaintiff asked for and was granted leave to take an involuntary nonsuit with leave to move to set the same aside. And thereafter, and on the same day of the Term, plaintiff did file his motion to set aside the involuntary nonsuit and for a new trial. Thereafter, on the same day, said cause was continued by the court until the June, 1935, Term.

"Thereafter on June 13, 1935, at the June, 1935, term of court, the following order was made by the court:

"`Now on this day this cause coming on to be heard upon the motion of the plaintiff to set aside the involuntary nonsuit heretofore taken in said cause, comes the parties hereto, plaintiff and defendants by counsel, and the court proceeds to take up said motion, and being fully advised in the premises doth overrule said motion to set aside the involuntary nonsuit.

"`To which action by the Court in overruling his motion and in failing and refusing to set aside the involuntary nonsuit, and to grant him a new trial of said cause, the plaintiff, by his counsel, then and there objected and excepted at the time and still objects and excepts.'

"Thereafter, to-wit, on the said 13th day of June, 1935, and during the same term of court that the above and foregoing order was made and entered of record herein, the plaintiff, by counsel, leave of Court...