Gate City Nat. Bank v. Boyer

• Decision Date: 08 January 1912
• Parties: GATE CITY NAT. BANK v. BOYER et al.
• Court: Missouri Court of Appeals

142 S.W. 487

161 Mo. App. 143

GATE CITY NAT. BANK v. BOYER et al.

Springfield Court of Appeals. Missouri.

January 8, 1912.

1. ATTACHMENT (§ 302)—CLAIMS BY THIRD PERSONS—INTERPLEA.

Under Rev. St. 1909, § 2345, permitting an interplea by a person claiming property attached, the interplea is in the nature of statutory replevin, and, for the interpleader to prevail, he must have legal title or right to immediate possession.

2. APPEAL AND ERROR (§ 1001)—REVIEW OF FACTS—SUFFICIENCY OF EVIDENCE.

An appellate court will not set aside the verdict, if supported by substantial evidence.

3. NEW TRIAL (§ 65)—SUFFICIENCY OF EVIDENCE.

The trial court should supervise the verdict and grant a new trial if it is against the weight of the evidence, or is manifestly wrong, or appears to be the result of passion, prejudice, or misconduct.

4. NEW TRIAL (§ 72)—WEIGHT OF THE EVIDENCE—DISCRETION OF COURT.

The granting of a new trial on the ground that the verdict is against the weight of the evidence is exclusively within the province of the trial court

5. APPEAL AND ERROR (§ 979)—DISCRETION OF COURT—NEW TRIAL.

The appellate court, in reviewing the action of the court on granting a new trial for insufficiency of the evidence, will only look to see if there is any substantial evidence to support the verdict, and, unless it is shown that the discretion was abused, will not interfere.

6. APPEAL AND ERROR (§ 882)—ESTOPPEL TO ALLEGE ERROR.

Plaintiff, having attached notes as well as a deed of trust which secured them, was not entitled to complain that instructions on the rights of a claim by a third person made an issue of fact of the ownership of the deed of trust as well as of the notes, though as a matter of law the ownership of the deed followed the ownership of the notes.

7. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—INSTRUCTIONS—APPLICABILITY.

Where a party attached notes and a deed of trust securing them, any error in the court's instructions on the rights of a claim by a third person in making an issue of the ownership of the deed of trust, which in law followed the notes, was harmless.

8. ATTACHMENT (§ 311) — CLAIM BY THIRD PERSON—INSTRUCTIONS—LANGUAGE.

That an instruction stated that the issue was whether notes and a deed of trust attached "is" the property of the interpleader, instead of saying "were" the property of the interpleader at the time of the levy, was immaterial; there being no evidence of change of property since the levy.

9. APPEAL AND ERROR (§ 1066) — INSTRUCTIONS—HARMLESS ERROR.

Plaintiff attached notes and a deed of trust securing them, and the debtor's son made claim thereto by way of interpleader. The court instructed that: "What a man may lawfully do himself he may do through an agent. The interpleader had a right to employ his father as his agent in making the loan to W. [the maker of the notes]. If you believe that in lending money evidenced by notes the father acted as the agent of the son and loaned the son's money evidenced by said notes, as the agent of the son, then you will find for the son." Held, that the abstract statements as to agency were not reversible error.

10. ATTACHMENT (§ 311) — MISLEADING INSTRUCTIONS—CLAIMS BY THIRD PERSONS.

The instruction was not calculated to mislead the jury as to the issue of ownership.

11. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—INSTRUCTIONS—APPLICABILITY.

Plaintiff attached notes and a deed of trust as the property of its debtor, though the notes were payable to the debtor's son, and he interpleaded, claiming title thereto. Plaintiff filed a general denial, and did not claim that the transaction was fraudulent, and there was no evidence of fraud. The court instructed for the interpleader that, in determining the question of property and in determining whether the notes were taken in the son's name fraudulently or in good faith, the jury should consider all the facts and circumstances in evidence, including the evidence of motive actuating the parties or the lack of motive, provided the lack of motive had been shown. Held not to constitute reversible error.

12. ATTACHMENT (§ 307)—CLAIMS BY THIRD PERSONS—PLEADING.

In attachment, where there was an interplea by a third person claiming the property, plaintiff, under a general denial, was entitled to show that the interpleader's claim of ownership was fraudulent, and that he had no title.

13. ATTACHMENT (§ 308) — EVIDENCE—BURDEN OF PROOF—FRAUD.

The burden of proof in an attachment suit is on the party who charges fraud.

14. ATTACHMENT (§ 311)—CLAIMS BY THIRD PERSONS—INSTRUCTIONS.

Where property attached was claimed by a third person, an instruction that, if the debtor held it as the agent of the interpleader, such right of possession as agent would not defeat the claim of the interpleader, was not erroneous as referring to some claim of the interpleader other than that set up in the proceedings.

15. ATTACHMENT (§ 311)—CLAIMS BY THIRD PERSONS—INSTRUCTIONS.

Plaintiff attached notes as the property of a debtor which were made payable to the debtor's son, and the son filed a claim by interpleader. Plaintiff requested an instruction that if the son furnished the money for the notes, and they were made to him in good faith, yet, if he subsequently delivered them to his father for the purpose of passing title to him, verdict should be against the interpleader. Held, that the instruction was properly refused, as on such delivery the father's ownership would be derived by sale or gift, and the instruction did not state the elements of sale or gift.

16. EVIDENCE (§ 121)—RES GESTÆ — ORIGINAL TRANSACTIONS.

Plaintiff attached notes as the property of a debtor which were payable to the debtor's son, who made claim by way of interpleader, and the son's evidence was that his father wishing to make a loan to the maker of the notes, but, being unable to do so, the son furnished the money, and the father acted as his agent. Held, that insurance policies to the maker of the notes with "loss payable to the son as his interest might appear" were cumulative evidence that the notes were made to the son for the loan, and were res gestæ.

17. ATTACHMENT (§ 308)—CLAIMS BY THIRD PERSONS—EVIDENCE.

On attachment of certain notes as property of a debtor which were payable to his son, who made claim thereto by way of interpleader, contending that the notes evidenced a loan made by him with his money through his father as agent, it was not error to permit the son to state that a certain paper was a power of attorney evidencing the arrangement between himself and his father, he not testifying as to its contents nor being permitted to testify as to what payments or other proceedings were had thereunder, but being allowed to state what was done after the paper was executed.

18. ATTACHMENT (§ 308)—CLAIMS BY THIRD PERSONS—EVIDENCE.

Plaintiff attached certain notes as the property of a debtor which were payable to the debtor's son, who claimed them by interplea, contending that the notes evidenced a loan made by him through his father as his agent, and that at the same time he had borrowed some money from his father. Held, that it was not error to permit the son to testify to the amount of certain checks drawn in his name on his account by his father; the object being to show repayment of the amount borrowed from his father.

19. APPEAL AND ERROR (§ 1170)—HARMLESS ERROR—CONSTRUCTION OF STATUTE.

In attachment of notes as the property of a debtor, which were payable to his son and claimed by the son as his own property, his testimony "that nobody had any interest in those notes besides himself," which though a conclusion, was amply shown by all his evidence, would not justify reversal under Rev. St. 1909, § 2082, forbidding reversal for any technical error, or one not substantial.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by the Gate City National Bank against J. H. Boyer, aided by attachment, in which Z. M. Boyer interpleads. From a judgment for the interpleader, plaintiff appeals. Affirmed.

John L. McNatt and McCune, Harding, Brown & Murphy, for appellant. J. M. McPherson and I. V. McPherson, for respondent.

NIXON, P. J.

This is an action commenced in the circuit court of Lawrence county by the Gate City National Bank against J. H. Boyer upon a certain promissory note executed by J. H. Boyer on January 15, 1908, to the Miners' & Merchants' Bank of Aurora in the sum of $4,306.53. The note was subsequently discounted by the plaintiff, and, Boyer having left the state, the plaintiff in October, 1910, sued out a writ of attachment on the ground that J. H. Boyer was a nonresident of the state, and under this writ seized in the hands of the Bank of Aurora two promissory notes and the deed of trust securing them as the property of J. H. Boyer. Thereafter Z. M. Boyer appeared as interpleader, claiming title to the two notes seized. Upon trial before a jury the interpleader had judgment, from which the plaintiff has appealed.

One of the notes seized was for $600 and the other for $700, both being dated October 20, 1908, payable to Z. M. Boyer three years after date, with interest at 8 per cent. per annum, and were executed by N. V. H. Walker and wife, being secured by a deed of trust on real estate. At the time the notes were executed, both Walker and J. H. Boyer resided at Aurora, in Lawrence county, Mo. Z. M. Boyer was a resident of Portland, Or., and was an insurance agent, his business taking him to different parts of the country, and he was frequently away from home at long periods of time. J. H. Boyer was a director in the Miners' & Merchants' Bank of Aurora, of which his son-in-law was the cashier. J. H. Boyer and Walker were old friends. Walker applied to him for a loan which he was unable to make because of lack of funds, but he made an effort to get the money for Walker from different persons. Among others, he applied to one of his clients by the name of Stewart in Kansas City,...