Dorrell v. Sparks
| Decision Date | 04 April 1910 |
| Parties | G. B. DORRELL, Administrator, Respondent, v. BENJAMIN F. SPARKS, Executor, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
George Pepperdine and H. E. Howell for appellant.
(1) The burden of proof is always determined from the pleadings alone and never shifts. The burden of evidence often shifts. Feurt, Ex., v. Ambrose, 34 Mo.App. 360; McCartney v. Ins. Co., 45 Mo.App. 373; Bunker v Hibler, 49 Mo.App. 542; Livery Co. v. McKelvey, 55 Mo.App. 240; Newell v. Iron Co., 5 Mo.App. 260; St. Louis v. Arnot, 94 Mo. 275. (2) Plaintiff assumed the burden of proof on the trial by introducing his evidence first and he is bound by the theory he adopted at the trial. Sawyer v. Walker, 204 Mo. 133; Wolfe v. Supreme Lodge, 160 Mo. 685. (3) If the court did not err in placing the burden of proof on the defendant, then it erred in refusing counsel for defendant the right to open and close the argument to the jury. Bank v. Metcalf, 29 Mo.App 396.
G. A Watson and G. W. Goad for respondent.
(1) The burden of proof was on defendant to show the gift as alleged in her answer. Brown v. Brown, 90 Mo. 184; Bower v. Bower, 97 Mo. 674; Jones v. Falls, 101 Mo.App. 536; Reed v. Carroll, 82 Mo.App. 102; Greisel v. Jones, 123 Mo.App. 45; Buckel v. Smith, Admr., 82 S.W. 235; 14 A. & E. Enc. of Law, 1051, 1033; 20 Enc. of Law, 1219; Glassey v. Furnace Co., 120 Mo.App. 24. (2) It was not error to refuse to defendant the opening and closing argument to the jury. The order of argument is a matter to be regulated by the trial court. Corbitt v. Mooney, 84 Mo.App. 645; State v. Waltham, 48 Mo. 55; Meridith v. Wilkerson, 31 Mo.App. 1; Elder v. Oliver, 30 Mo.App. 575; Harvey v. Sullens, 56 Mo. 373; Reichard v. Insurance Co., 31 Mo. 518; Farwell v. Brennan, 32 Mo. 333; Tibeau v. Tibeau, 22 Mo. 77; Wade v. Scott, 7 Mo. 509; 1 Thompson on Trial, 213.
November 17, 1908, the plaintiff filed in the office of the circuit clerk of Greene county, Missouri, 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 plaintiff, 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, $ 2106.68; 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, and that she resigned, and 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 testimony to prove the defense set up in the answer. The defendant prayed the court to give an instruction declaring to the jury that the burden of proving conversion of the notes rested upon the plaintiff in the case. This instruction was refused and one given in behalf of the plaintiff that the burden was on the defendant to show that her husband gave her the notes, and to find for the plaintiff unless she had established the gift by a preponderance or greater weight of the evidence. The defendant requested the court to permit his counsel to open and close the argument to the jury, which the court refused.
There are four assignments of error, and they are: That the court erred in refusing the instruction asked by the defendant, and giving the one asked by the plaintiff; refusing the defendant's counsel to open and close the argument; and in overruling defendant's motion in arrest of judgment, because the petition does not state facts sufficient to constitute a cause of action against the defendant as executor or individual.
As to the sufficiency of the petition, it is true when standing alone, it does not authorize a judgment against the defendant as executor or as an individual. The petition named Lulu Howell as the defendant, and no amended petition was filed after her death, but the defendant answered as the executor of her estate, and the parties appeared and went to trial without objection.
The appearance of the executor and the filing of his answer, gave the court jurisdiction over his person. This is an action in personam, and as the court had jurisdiction over the subject-matter and the parties appeared and went to trial without objection, it is too late to raise the question in this court. On appeal the court is not confined to the allegations of the petition alone to determine whether it is sufficient to support the judgment, but the court may look to the answer as well. [Shelton v. Franklin, 123 S.W. 1084; Bank v. Pettit, 85 Mo.App. 499; Currell v. Railroad, 97 Mo.App. 93, 71 S.W. 113.]
The burden of proof means the burden of establishing the case and remains unchangeable throughout the entire case exactly where the pleadings originally placed it; that is, on him alone who has the affirmative, though the burden of the evidence may, during the trial, be shifted from scale to scale. [McCartney v. Ins. Co., 45 Mo.App. 373; ...
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