Davis v. Johnson

• Citation: 58 S.W.2d 746,332 Mo. 417
• Decision Date: 16 March 1933
• Docket Number: 32232
• Parties: Wyley L. Davis, Administrator of the Estate of N. Gibson, v. Charlie Johnson and Bonnie Johnson, Appellants
• Court: United States State Supreme Court of Missouri

58 S.W.2d 746

332 Mo. 417

Wyley L. Davis, Administrator of the Estate of N. Gibson, v. Charlie Johnson and Bonnie Johnson, Appellants

No. 32232

Supreme Court of Missouri

March 16, 1933

Appeal from Pemiscot Circuit Court; Hon. John E. Duncan Judge.

Affirmed and remanded.

McKay & Peal for appellants.

The court erred in sustaining plaintiff's motion for new trial (a) for the reason plaintiff failed to make a case for the jury, and (c) for the reason the errors complained of are harmless errors, since there was a total failure of proof by plaintiff. Secs. 1001, 1002, R. S. 1929; Ittner v Hughes, 133 Mo. 679; Daken v. G. W. Chase, etc Mer. Co., 197 Mo. 238; Magrane v. Railroad Co., 183 Mo. 119; Quinn v. Railroad Co., 218 Mo. 545; Moore v. Railroad Co., 176 Mo. 528; Carr v. Railroad Co., 195 Mo. 214. The court erred in sustaining motion for new trial (b), for the reason this is a summary proceeding to discover assets of an estate and the only means of enforcing the judgment is by commitment to jail, and since the record shows the death of the alleged derelict parties there is no means of enforcing the judgment. Secs. 63-66, R. S. 1929; In re Estate of Huffman, 132 Mo.App. 44; Dameron v. Dameron, 19 Mo. 317; In re Fowler, 221 Mo.App. 325.

Von Mayes and Ward & Reeves for respondent.

(1) As to the point that the plaintiff failed to make a case for the jury, we do not deem it necessary to cite any authorities, because the appellant does not undertake to set out in his brief the substance of the testimony or make any statement in regard to the testimony on this feature of the case, and we do not assume that this court will wade through the record to ascertain whether or not there is substantial testimony to go to the jury on the issues involved, since the appellant does not undertake to point out wherein the testimony fails and cites no authority on the point. If the court cares to read the record of the evidence we are sure that it will be convinced that plaintiff had substantial testimony to go to the jury on the question of whether or not property or money was concealed or otherwise withheld by defendants from the estate of Newberry Gibson. Besides, as to the defendant, Bonnie Johnson, no demurrer to the evidence was offered either at the close of plaintiff's case or at the close of the whole case, and this defendant having joined plaintiff in submitting the case to the jury, she thereby admitted that plaintiff made a case for the jury and cannot raise this question on appeal. Carrol v. Young, 267 S.W. 436; Boone County Lbr. Co. v. Neidermeyer, 187 Mo.App. 180. (2) It has been in effect held by the appellate courts that in proceedings under Sections 63-66, Revised Statutes 1929, where funds have been withheld or even converted, a personal judgment may be entered against the guilty party and upon which, of course, a general execution may be issued, and we do not believe that commitment for contempt is an exclusive remedy, but that the party in the wrong may be proceeded against by general execution. The case of Dameron v. Dameron, 19 Mo. 317, cited by appellant, has been overruled. Tygard v. Falor, 163 Mo. 242; In re Estate of Huffman, 132 Mo.App. 44; Clinton v. Clinton, 223 Mo. 371; Roelofson v. Whitten, 249 S.W. 688; Newell v. Kern, 218 S.W. 443; Sexton v. Sexton, 295 Mo. 134. It will be noted from the cases cited above that it is expressly held that property rights are determined in this statutory proceeding, and that the proceeding is a lawsuit. Under the statute, as well as the common law, all actions in which the rights of property are determined survive to the personal representative on the death of a party to a lawsuit. Sec. 891, R. S. 1929; Stanley v. Vogel, 9 Mo.App. 98; Baker v. Crandall, 78 Mo. 584; Whiting v. Crandall, 78 Mo. 593; Musick v. Railway Co., 114 Mo. 309; Kingsbury Exrs. v. Lane, Exrs., 21 Mo. 115; Brewington v. Admrs., 31 Mo. 38; Marks v. Hardy, 86 Mo. 232; Wiener v. Peacock, 31 Mo.App. 238.

OPINION

Hays, J.

This is a proceeding under Sections 63-66 of the Revised Statutes 1929, for the discovery of assets, said to belong to the estate of Newberry Gibson, deceased. It was duly initiated in the probate court by affidavit filed in which Charles Johnson and Bonnie Johnson, his wife, were charged with concealing, possessing and wrongfully taking in the period of 1922-1928 and wrongfully withholding money in the sum of $ 23,000 and other personal property belonging to said Gibson, deceased. In response to citation, Johnson and his wife appeared in the probate court and upon examination under oath denied the allegations in the affidavit. Thereupon issue was joined upon interrogatories filed by the executor and answers filed thereto by the defendants. Later the issue was tried in the probate court and from the judgment there rendered the defendants appealed to the circuit court. Upon a trial anew in the circuit court a demurrer to the evidence was given for defendant Charles Johnson and the defendant Bonnie Johnson recovered a verdict. Thereafter, pending a motion for a new trial duly filed by the plaintiff administrator c.t.a., the defendants Charles Johnson and Bonnie Johnson, died. The deaths were suggested, the cause was revived against Newberry Johnson as administrator of the estates of the deceased defendants, and he was brought in by writ of scire facias. At the return term of the scire facias, the motion for a new trial was heard and sustained, and Newberry Johnson, the substituted defendant, hereinafter referred to as the appellant, duly appealed to the Springfield Court of Appeals from the trial court's order granting a new trial. That court, being without jurisdiction because of the amount and value of the property in controversy, transferred the cause here.

The appellant's first contention is that the evidence in the case could not in any event make out a case for the jury and for that reason it was error to grant a new trial.

I. It may be observed at the outset that it does not appear either in the printed record or in the briefs of counsel that the court nisi, in passing on the motion for a new trial, specified any ground upon which it was sustained. The motion contains some half-dozen grounds, one of which is that the verdict was against the evidence and another that the jury were improperly instructed at the instance of the defendants.

Upon that condition of the record the appellant apparently assumes that the motion was ruled on the weight of the evidence. His position is sustained by decisions of our several Courts of Appeals. [King v. Mann, 208 Mo.App. 642; Barth v. Boyer, 27 S.W.2d 499, 500; Piano Co. v. Wilson, 27 S.W.2d 1051.] The respondent makes a counter-suggestion that the instructions given at the instance of the original defendants incorrectly declared the law of the case, thereby misleading the jury to an improper verdict, and that such error justifies the granting of the new trial. His position is fully tenable if he has discharged the burden of showing such error. However, his effort in that behalf consists alone in his statement of his proposition. He has not seen fit to comply with our Rule 15 by directing, in his brief, our attention to any particular fault in the instructions. Consequently the instructions are not before us and we are not disposed to search the record and make an independent analysis of them. We note a similar omission upon the part of the appellant. Though attacking the evidence upon the ground of insufficiency, he has not in his brief stated the evidence or given any summary thereof but has been content with the bare statement that it was insufficient. That is not a compliance with Rule 15, which requires that the appellant's brief shall contain "a fair statement of the facts." It is therefore apparent that the ruling complained of receives no light from the record proper or from the appellant's statement.

Taking the point as it is thus presented, we may dispose of the first assignment briefly by stating a general rule which governs that phase of the case. Under a statute of long standing (now Sec. 1001, R. S. 1929) a trial court has a broad discretionary power to grant one new trial on the ground that the verdict is against the evidence; and the general rule is that the discretion exercised by the trial judge in that respect will not be disturbed, unless it be shown that a converse verdict could not for lack of supporting evidence be permitted to stand. [State ex rel. v. Ellison, 268 Mo. 225, 186 S.W. 1075.] This because the trial judge has an advantage in his opportunity to see the witnesses, to observe their conduct and demeanor on the witness stand, their interest, bias or prejudice; to form some opinion as to their veracity, and to observe various incidents of the trial not ordinarily reflected by the printed record. [Honea v. Railroad, 245 Mo. l. c. 650, 151 S.W. 119.] It follows that the trial court should not be convicted of error in granting the new trial on the weight of the evidence, unless the order complained of was erroneous on another ground yet to be considered.

It is also contended that this proceeding was not revivable against the appellant as administrator of the estates of the deceased original defendants. As reasons for the contention it is asserted that the proceeding is summary and that the statutes upon which it is predicated provide no adequate means of enforcing any judgment that might thereunder be rendered in this case.

The procedure authorized by those statutes "is a summary and quick method of bringing property into the estate. The probate court is a court of record, and in practice, when not otherwise provided, may borrow from the Code." [Clinton v. Clinton, 223 Mo. 371, 388, 123 S.W 1.] The procedure was...