Dorrell v. Sparks.

• Decision Date: 04 April 1910
• Citation: 142 Mo. App. 460,127 S.W. 103
• Parties: DORRELL v. SPARKS.
• Court: Missouri Court of Appeals

127 S.W. 103

142 Mo. App. 460

DORRELL v. SPARKS.

Springfield Court of Appeals. Missouri.

April 4, 1910.

1. APPEAL AND ERROR (§ 193) — RESERVATION OF GROUNDS OF REVIEW — OBJECTIONS — PLEADINGS — SUFFICIENCY.

Where, in an action in personam, no amended petition was filed after the death of defendant, but his executor appeared and answered, and thereby gave the court jurisdiction, and the parties went to trial without objection, the question of the sufficiency of the petition because of the failure to amend could not be raised for the first time on appeal.

2. EVIDENCE (§ 94) — "BURDEN OF PROOF."

"Burden of proof" means the burden of establishing the case, and remains unchangeable throughout the entire case where the pleadings originally placed it, and is on him alone who has the affirmative, though the burden of the evidence may, during the trial, be shifted.

3. GIFTS (§ 47) — EVIDENCE — BURDEN OF PROOF.

Where, in an action by an administrator to recover notes, the executor of the wife of the intestate admitted that the intestate had at one time owned the notes, but that at a certain time he had given the notes to her and had delivered the possession of them to her, the only issue was whether the intestate had given the notes to the wife, and on that issue the burden of proof was on her executor.

4. TRIAL (§ 25) — CONDUCT OF TRIAL — RIGHT TO OPEN AND CLOSE.

Where the burden of proof on the only issue in the case was on defendant, his counsel was entitled to open and close the argument to the jury.

5. APPEAL AND ERROR (§ 969) — REVIEW — DISCRETION OF COURT — RIGHT TO OPEN AND CLOSE.

It is within the discretion of the trial court to award the right to open and close; but, where defendant had the burden of proof on the only issue in the case, the refusal to award him such right was ground for reversal, it appearing that the verdict on conflicting evidence for plaintiff was not unanimous, and that plaintiff only succeeded in obtaining a sufficient number of the jurors to return a verdict.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by G. B. Dorrell, administrator, against Benjamin F. Sparks, executor. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

George Pepperdine and H. E. Howell, for appellant. G. A. Watson and G. W. Goad, for respondent.

GRAY, J.

November 17, 1908, the plaintiff filed in the office of the circuit clerk of Greene county, Mo., his petition in this cause, to which the defendant in due time answered. On the 15th day of October, 1909, the cause was tried to a jury and a verdict in favor of the plaintiff, signed by nine of the jurors, returned. Judgment was entered upon this verdict, and the defendant, after an unsuccessful effort to obtain a new trial, appealed his cause to this court.

The action was commenced by the administrator of the estate of H. M. Simcox, deceased, against Lulu Howell, who was formerly Lulu Simcox, the widow of the deceased, H. M. Simcox. The petition alleged the death of Simcox, the appointment by the probate court of plaintiff as administrator of his estate after the said Lulu Howell had been appointed and resigned, and then charged that the said H. M. Simcox, at the time of his death, was the owner of and possessed of promissory notes, aggregating, together with interest, $2,-106.68; that after the death of the said H. M. Simcox the said notes came into the possession of the said Lulu Howell, and that she wrongfully converted the same to her own use; and prayed judgment for the value of the notes and interest. The answer named as defendant Benjamin F. Sparks, executor of the estate of Lulu Simcox Howell, deceased, and alleged that the defendant was the executor of the estate of Lulu Simcox Howell, deceased, duly appointed by the probate court of Greene county, after her death, which occurred on the 5th day of March, 1909; also admitted the death of Simcox, that the said Lulu Simcox Howell was formerly the wife of said H. M. Simcox, that she was duly appointed his executrix, that she resigned, that the plaintiff was appointed administrator of the estate, and that at the time the answer was filed he was the legally acting administrator of said estate; admitted that Simcox at one time was the owner and possessed of the notes described in the petition, but denied that upon the death of the said H. M. Simcox, or at any other time, said notes became the property of his estate; and denied that at the time alleged in the petition, or any other time, the decedent, Lulu Simcox Howell, converted said promissory notes to her own use, and declared the fact to be that during the lifetime and prior to the _____ day of January, 1907, the said promissory notes were the property of said H. M. Simcox; that on or about the 15th day of January, 1907, the said H. M. Simcox gave said notes to the said Lulu Simcox Howell, and delivered to her the possession of the same, whereby they became her sole and separate property and continued to be such at all times thereafter. The parties have filed a stipulation in this court, which we are to consider in lieu of the evidence, by which it is shown that the plaintiff introduced testimony to prove the facts alleged in the petition, and the defendant introduced...