Gibson v. Swofford

• Decision Date: 03 December 1906
• Citation: 122 Mo. App. 126,97 S.W. 1007
• Parties: GIBSON v. SWOFFORD.
• Court: Missouri Court of Appeals

97 S.W. 1007

122 Mo. App. 126

GIBSON v. SWOFFORD.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

1. EVIDENCE—BURDEN OF PROOF—MATTERS OF DEFENSE.

On replevin by an administrator for property in the hands of decedent's father, which it is admitted at one time belonged to decedent, but which the father claims to have purchased, the burden of showing such purchase is on defendant.

2. TRIAL—VERDICT—DESIGNATION OF PARTIES.

During the pendency of a replevin proceeding by an administratrix, she was married and another by order of record substituted as administrator in her stead. The verdict was formally entitled with the name of the former administratrix, and stated that the jury found for "plaintiff." Held, that an objection based on such discrepancy was unsubstantial.

3. APPEAL—DETERMINATION OF CAUSE—AFFIRMANCE—SUBSTANTIAL JUSTICE.

Where a judgment in a controversy involving only $100 reaches the Court of Appeals after a sharp contest lasting for a considerable time, and no error appears substantially affecting the merits, it will be affirmed under the statute.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Della E. Swofford, as administratrix of W. C. Swofford, deceased, against William Swofford, James A. Gibson being substituted as party plaintiff. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Wm. E. Sherwood, for appellant. Luke K. Moss, for respondent.

ELLISON, J.

The plaintiff is public administrator of the estate of W. C. Swofford, deceased, and the defendant is the father of the deceased. The son was married to Della E. Swofford, and she was appointed administratrix of his estate and as such brought this action in replevin for a lot of personal property. She married, and then the present plaintiff was substituted in her stead as plaintiff. The jury found for the plaintiff, and assessed the value of the property at the time of the trial at $100, and likewise assessed the damages at $10.

There was no substantial dispute as to defendant's having the property, and that originally it belonged to his son. He, however, claimed to have purchased a part of it of the son prior to his death. Ordinarily, the burden of proof is on the plaintiff, but, on issue as here presented, it devolved upon the defendant to show that he bought the property of his son. Instructions on this head were proper. Defendant claims that there is no proper verdict in the case, in that it is not returned in favor...