Frisbie v. Frisbie

• Decision Date: 25 June 1948
• Docket Number: 34657.
• Citation: 33 N.W.2d 23,226 Minn. 435
• Parties: FRISBIE et al. v. FRISBIE.
• Court: Minnesota Supreme Court

33 N.W.2d 23

226 Minn. 435

FRISBIE et al. v. FRISBIE.

No. 34657.

Supreme Court of Minnesota

June 25, 1948

Syllabus by the Court.

1. Review on appeal must be limited to the record. To justify reversal of a judgment, the record must show affirmatively that there was material error.

2. A nonappealable order made after trial and before the entry of judgment can be reviewed only upon an appeal from the judgment where no motion for a new trial has been made hence, so long as the judgment may be questioned on appeal the correctness of such order may also be attacked.

3. In an action for an accounting, the finding of a balance due necessarily negatives all items litigated and not allowed in arriving at the balance. The burden is upon defendant to show that there is no substantial evidence reasonably tending to sustain the findings of fact.

4. When an action is tried by a court without a jury, its findings of fact are entitled to the same weight as the verdict of a jury and will not be reversed on appeal unless they are manifestly and palpably contrary to the evidence.

5. In an action for an accounting of income and expenses derived from the operation by defendant under a power of attorney of four farms, a wood lot, and three houses, brought by plaintiffs, a brother and sister of defendant, as tenants in common with defendant of the properties, evidence reviewed and Held to sustain trial court's findings in favor of plaintiffs.

6. Held that the order denying defendant's motion for amended findings of fact and conclusions of law made after trial and before entry of judgment, where no motion for new trial was made, and reviewed on appeal from the judgment, is sustained.

Appeal from District Court, Olmsted County; Vernon Gates Judge.

P. E. Sargent, of Pine Island, for appellant.

Joseph A. Streiff of Stewartville, for respondents.

FRANK T. GALLAGHER, Justice.

Appeal from a judgment entered after trial and after the entry of an order refusing to grant defendant's motion for more definite and certain findings of fact as to the amount of compensation allowed him and expenses incurred by him and allowed.

1. It is fundamental that the review on appeal must be limited to the record. To justify reversal of a judgment, the record must show affirmatively that there was material error. 1 Dunnell, Dig. & Supp. s 386.

2. In the instant case there was no motion for a new trial. Ordinarily, an order denying a motion for more definite and certain findings of fact is nonappealable, but here the order was made after trial and before the entry of judgment; hence it can be reviewed. A nonappealable order made after trial and before the entry of judgment can be reviewed only upon an appeal from the judgment where no motion for a new trial has been made; hence, so long as the judgment may be questioned on appeal, the correctness of such order may also be attacked. 1 Dunnell, Dig. s 389, and cases under notes 30 and 40.

3. Plaintiffs are the brother and sister of defendant. Their action, tried before the court without a jury, was for an accounting of income and expenses on four farms, a wood lot, and three houses in Stewartville, Minnesota, inherited by the litigants from their deceased father, who in common, each owning an individed one-third ion common, each owning an individed one-third interest. Defendant was a farmer living on one of the farms at the time of his father's death. He was administrator of his father's estate. Defendant was given a power of attorney on August 19, 1943, and, although it was drawn for a year, he continued to act under it until it was terminated November 12, 1946. Nothing was paid to plaintiffs during this period. The power of attorney authorized defendant to rent the property described therein and collect the rents, to deposit the receipts in a special account in the bank named, to pay out of the account taxes and insurance premiums, costs of minor repairs, and necessary expense. It provided that defendant was to furnish an annual account of receipts and disbursements. There was no provision for compensation to defendant.

Defendant moved to Stewartville in 1944 and lived on the 20-acre farm. He set up a checking account in the Stewartville National Bank. All the houses were sold, and the proceeds therefrom were deposited in the checking account. During 1946, defendant operated a portion of two farms. In operating these farms, he used his own machinery. He did not secure plaintiffs' consent to operate the places himself.

Defendant made his reports of receipts and disbursements for the years involved, the first one from about August 2, 1943, to August 14, 1944; the second from about August 17, 1944, to August 24, 1945; and the third from about August 27, 1945, to August 24, 1946. The terms of the fiscal years started at various times in August each year and continued to about the same time in August of the following year. The terms had no particular relation to the calendar year, the cropping season, or, apparently, to anything else in connection with the handling of the property. It is apparent that considerable controversy developed between plaintiffs and defendant in connection with these years. Dissatisfaction on the part of plaintiffs with the manner in which defendant was managing the property culminated in 1946, when plaintiffs received the report for that year wherein defendant claimed that plaintiffs owed him $4,728.30. The result was this action for an accounting, started in December 1946.

A review of the record shows considerable confusion and uncertainty on the part of defendant at the trial in connection with his explanation of the accounts and certain charges and credits claimed by him for services, machine hire, and other claimed expense items while he was handling the property. There was no distinct separation of capital receipts from income receipts. Farm expense items were mingled with upkeep expenses in such a manner as to make it difficult to understand his accounting method. The efforts made in questioning him as a witness in order to clarify these confusions brought forth answers which were not always responsive or informative, but sometimes argumentative and uncertain. For example, when asked whether he knew how much the income amounted to from the property for the period from August 2, 1943, to August 14, 1944, he replied: 'Well, it's all on those reports. * * * I kept track of the balance in the bank.' As to this period, he further testified:

'Q. Would you think that amounted to $2,688.65? A. I couldn't say about that.

'Q. Did you ever add up the expenses for the period from August 2nd of '43 to August 14th of '44? A. You mean the expense of running the property?

'Q. The expenses contained in the Plaintiff's Exhibit 2, as you prepared and submitted to your brother? * * * A. No. * * *

'Q. Do you have any idea of the income during the period from August 2, 1943, to August 14, 1944, of farm rent as distinguished from the rental of the city property? A. No, I can't--I can't remember everything that ever happened in my life. * *

'Q. Now, going to your disbursements for the period from August 12th of '43 to August 14th of '44, do you have any idea of the amount of disbursements during that period? A. No, no, I don't.

'Q. If I were to say it was $2,059.23, do you think it would be that large? A. I couldn't say about that; I figured when I wrote a check--I figured there was money in the bank to pay the check, and that was more my concern than what the bill was.'

As to this year, he was asked:

'Q. Then you have numerous items of rent and so on, you have hay and you have 344 bushels of corn; now, then, the next item you have got, 'Credit to heirs, $457.20," then you got disbursements, what are the meanings of those items; did you give checks for those items or is that money you took in cash and paid out of your pocket, or just what is that? A. Well, I couldn't just say right now, but it was something apparently that I owed--apparently something that I owed for money that I had taken in. * * *

'Q. * * * then you got disbursements on the opposite page, 'Advanced to pay hay balers, $22.60,' the money you advanced out of your own pocket? A. 'Advanced to pay hay balers,' you say?

'Q. Yes (nods). A. I can't just see that here--them reports I sent in were perfectly satisfactory. I don't see they got to be hashed over, back two or three years ago, all that stuff was perfectly okay with my brother and sister--I don't see what they want to hash that over for. * * *

'Q. Now, please answer the questions; how much property were you renting for the heirs? A. At what date?

'Q. For the period from August 12, 1943, to August 14, 1944; your first year as you showed there? A. Well, now, I sold some houses there, and I--

'Q. How much property were you renting? A. I can't recall those things. * * *

'The Court: * * * Now, he has asked you if there was any other farm that you had to find tenants for that year? Now, that is a simple question.

'Witness: It might look simple, but it's pretty hard for me to remember three years ago.

'The Court: Well, you kept accounts of this, or should have.

'Witness: I got it on papers.

'The Court: Look at the papers there, then.

'Witness: I got no record of that.

'The Court: Where are your records?

'Witness: I never agreed to keep no record of that; all I agreed to keep records of it was the final part, and I got those records. * * *

'The Court: You didn't answer the question that was asked of you; now, that is all we ask you to do. He asked when you first took it over did you have to find tenants for more than one farm, and your answer is, if I understood, you had to find tenants for two farms?

'Witness I was...