Dinkelman v. Hovekamp

• Citation: 80 S.W.2d 681,336 Mo. 567
• Parties: Edna Hovekamp Dinkelman and Josephine Hovekamp, Appellants, v. Mamie Hovekamp
• Decision Date: 05 March 1935
• Court: United States State Supreme Court of Missouri

80 S.W.2d 681

336 Mo. 567

Edna Hovekamp Dinkelman and Josephine Hovekamp, Appellants, v. Mamie Hovekamp

Supreme Court of Missouri

March 5, 1935

Rehearing Denied January 7, 1935.

Motion to Transfer to Banc Overruled March 5, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded (with directions).

Cullen Fauntleroy & Edwards for appellants.

(1) This action was one at law and the plaintiffs were entitled to a trial by jury and there was no waiver thereof. Koehler v. Rowland, 275 Mo. 581, 205 S.W. 217, 9 A L. R. 107; Jacobs v. Waldron, 317 Mo. 1137, 298 S.W. 773; Ebbs v. Neff, 30 S.W.2d 620; Cullen v. Johnson, 29 S.W.2d 39; Sec. 950, R. S. 1929; Briggs v. Ry. Co., 111 Mo. 175, 20 S.W. 32; Dilly v. Ry. Co., 55 Mo.App. 128; Lorenz v. Morney, 121 Mo.App. 409, 282 S.W. 59; Ray v. Collins, 274 S.W. 1098; Brown v. Ry. Co., 69 Mo.App. 418; Batterton v. Sims, 73 Mo.App. 351. (2) The declarations of Hovekamp in 1922 and 1923 are admissible as proof of his first marriage and its continued existence and in contradiction of his declaration that he was single and unmarried at the time he contracted his second marriage. 38 C. J., sec. 109, p. 1336; Pope v. Ry. Co., 175 S.W. 957; Topper v. Perry, 197 Mo. 531, 95 S.W. 203; State v. Gonce, 79 Mo. 600; State v. McDonald, 25 Mo. 176; Butterfield v. Butterfield, 195 Mo.App. 37, 187 S.W. 295; Imboden v. St. Louis Union Trust Co., 111 Mo.App. 220, 86 S.W. 263; Osmak v. Am. Car & Foundry Co., 328 Mo. 159, 40 S.W.2d 717, 77 A. L. R. 722; Sikes v. Riga, 297 S.W. 727, 221 Mo.App. 160; 22 C. J., pp. 972-73; Whalen v. Tobener, 71 Mo.App. 370; Coberly v. Coberly, 87 S.W. 957, 189 Mo.App. 18. (3) The presumption in favor of the second marriage was rebutted by the evidence of the continued existence of the first marriage and the judgment therefore is against the weight of the credible evidence. 38 C. J., sec. 115, pp. 1343-44; Shoemaker v. Johnson, 204 S.W. 962, 200 Mo.App. 216; Kaprivica v. Insurance Co., 218 S.W. 689; Floyd v. Casualty Co., 13 S.W.2d 909; Cartwright v. McGown, 121 Ill. 388, 12 N.E. 737; Cole v. Cole, 153 Ill. 585, 38 N.E. 703; Ellis v. Ellis, 58 Iowa 720, 13 N.W. 65; In re Colton, 129 Iowa 542, 105 N.W. 1008. (4) When parties are not in fact husband and wife the description of them as such is ineffectual to create an estate by the entirety. 30 C. J., sec. 88, p. 559, sec. 91, p. 562; 13 R. C. L., sec. 125, p. 1102; Wright v. Kayner, 150 Mich. 7, 113 N.W. 779; Morris v. McCarty, 158 Mass. 11, 32 N.E. 938; McKee v. Bevins, 138 Tenn. 249, 197 S.W. 563. (5) Since the real estate in issue is located in Missouri and Joseph E. Hovekamp was a resident of Missouri, the release of dower and settlement of claims for support and maintenance must be in accordance with the Missouri law. Inchoate right of dower cannot be released except by joining in deed with husband. Sec. 318, R. S. 1929, formerly Sec. 315, R. S. 1919; Sec. 3015, R. S. 1929, formerly Sec. 2175, R. S. 1919; Vantage Mining Co. v. Baker, 155 S.W. 466, 170 Mo.App. 457; Egger v. Egger, 225 Mo. 142; First Natl. Bank v. Kirby, 269 Mo. 285, 190 S.W. 597. (6) The court should have set aside the submission of the case upon the application of the plaintiffs in order to permit the introduction of the additional and newly discovered evidence concerning the marital relationship of Joseph E. Hovekamp and Josephine Hovekamp after the alleged ceremony of Joseph E. Hovekamp with the defendant. Powell v. Adams, 98 Mo. 605; Moffitt v. Hereford, 132 Mo. 522; Barrie v. United Rys. of St. Louis, 119 S.W. 1049; Powers v. Roofing Co., 123 S.W. 490, 146 Mo.App. 36; Leslie v. Frankel, 138 S.W. 64, 158 Mo.App. 262; Hellman v. Bick, 55 Mo.App. 168; Waters v. School District, 59 Mo. 580; 38 Cyc. 1938-39; Willoughby v. Brandes, 297 S.W. 57.

Bass & Bass and H. A. Loevy for respondent.

(1) Appellants' statement and brief reads: "The case was tried February 25, 1930, a jury being waived." But even if a jury had not expressly waived; respondent by her answer asked for equitable relief; an accounting of amounts paid for interest, taxes, water rates, fire insurance, etc., by her on the property involved if the decree should be against her, and she asked judgment for the amount due her on such accounting. Therefore the case became one of equitable cognizance. Hanser v. Richards, 256 Mo. 58; Bonton v. Pippin, 192 Mo. 469; Shaffer v. Detie, 191 Mo. 388; Trust Co. v. Nathan, 175 Mo. 32. (a) But even if there was no equitable defense but the case was purely and simply a law case; appellants nevertheless waived a jury by not demanding one at the outset of the trial and trying the case to the court as a jury-waived case. Bratsche v. Loesch, 51 S.W.2d 69; Sprague v. Carroll, 188 S.W. 63; Railroad Co. v. Randolph County, 103 Mo. 451; Drainage Dist. v. Campbell, 154 Mo. 151; Kansas City v. Woerishoffer, 249 Mo. 1; Smith v. Baer, 166 Mo. 392; State ex rel. v. Fuel Co., 245 Mo. 168; State ex rel. v. Lumber Co., 260 Mo. 212; Kline v. Morris, 293 Mo. 478; O'Day v. Conn, 131 Mo. 321; Hecker v. Bleisch, 37 S.W.2d 447; Gillham v. Ry. Co., 282 Mo. 130; State ex rel. v. Lumber Co., 260 Mo. 276; Pendleton v. Hubbard, 231 Mo. 314. (2) The burden was on appellants to establish there was no divorce, they have not sustained it. It will be presumed in favor of the second marriage that at the occurrence thereof the first marriage had been dissolved by a divorce, so as to pass the burden of introducing evidence to the contrary on the party attacking the second marriage, and this presumption in favor of the legality of the second marriage is one of the strongest known to the law. Klein v. Laudman, 29 Mo. 259; Johnson v. Railroad Co., 203 Mo. 381; Maier v. Brock, 222 Mo. 74; Jackson v. Phelan, 237 Mo. 142; Nelson v. Jones, 245 Mo. 379; Phillips v. Wilson, 298 Mo. 186; 22 C. J. 144, 145; 2 Schouler on Marr. & Div. (6 Ed.) 1486; 1 Bishop Marr. & Div. (6 Ed.), sec. 4551; Griggs v. Pullman Co., 40 S.W. 464. (3) Dower can be released by an unacknowledged instrument, even by married woman directly to her husband. Inchoate dower is merely a chose in action, not a title. Caldwell v. Head, 17 Mo. 561; Barnett v. Shipley, 82 Mo. 448; Harrington v. Fortner, 58 Mo. 468; Brooks v. Barker, 202 Mo. 490; Crenshaw v. Crenshaw, 276 Mo. 483; Smelzer v. Meier, 271 Mo. 186; Elsea v. Smith, 273 Mo. 411; Crites v. Crites, 225 Mo. 992; Woolridge v. Lumber Co., 236 S.W. 296.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer upon reassignment. Plaintiffs appeal from a judgment of the Circuit Court of the City of St. Louis vesting in defendant title to certain real estate in that city. Suit was brought to determine title under Section 1520, Revised Statutes 1929 (2 Mo. Stat. Ann p. 1682). Plaintiff, Josephine Hovekamp, is the first wife of Joseph E. Hovekamp, deceased, they having been married in Cincinnati, Ohio, January 7, 1891. Plaintiff, Edna Hovekamp Dinkelman, is the daughter, born of that marriage. Defendant, Mamie Hovekamp, was married to Hovekamp in St. Louis, Missouri, on January 16, 1904. Hovekamp and defendant, his St. Louis wife, acquired the real property in suit on May 2, 1923, by deed running to them as husband and wife. Hovekamp died on October 31, 1927. For ease of distinction of the two wives of Joseph E. Hovekamp, and not by way of unbecoming levity, we sometimes may refer to plaintiff, Josephine Hovekamp, as the Cincinnati wife, and to defendant, Mamie Hovekamp, as the St. Louis wife.

I. Plaintiffs first complain that the action was one at law and they were entitled to a trial by jury and there was no waiver of that right. It has been settled since the decision of this court in Lee v. Conran, 213 Mo. 404, 111 S.W. 1151 that the character of an action, whether as one at law or in equity, brought under present Section 1520, Revised Statutes 1929, is to be determined by the issues raised by the pleadings. Where the petition states an action at law, but the answer sets up an equitable defense and asks affirmative relief, the answer converts the action at law into a suit in equity. [Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217, 9 A. L. R. 107.] The amended petition was in conventional form. It stated that plaintiffs were the owners in fee simple as tenants in common of the land in suit, and that defendant was claiming some title, estate or interest in the land. The prayer was that the court ascertain and determine the title, estate and interest of the plaintiffs and of defendant. The answer, after making a general denial, set up several defenses one of which was that Joseph E. Hovekamp and defendant Mamie Hovekamp were married in St. Louis on January 16, 1904, and lived together in that city as husband and wife until his death in 1927; that on May 2, 1923, by deed to them, as husband and wife, they acquired the real estate in suit for a consideration of $ 7500. Of this sum Hovekamp contributed $ 3000, which defendant and he had saved out of his earnings during his marriage, and defendant contributed $ 3000 which her father had given her before his death in 1921. Hovekamp and defendant executed a purchase-money deed of trust for the balance, $ 1500, which was an encumbrance upon the property at the time of the filing of the answer. Defendant further pleaded that from the time of the purchase of the property by her and her husband, Hovekamp, she and he, and no one else, out of their own money paid all taxes, all interest due on the note and deed of trust securing the same, commissions for the renewal of the deed of trust, premiums on fire and tornado insurance policies, and also made at their own expense all repairs, the total aggregating a considerable sum. The answer further pleaded that if the...