Gillip v. Butts

• Decision Date: 13 October 1934
• Docket Number: No. 18171.,18171.
• Citation: 77 S.W.2d 1014
• Parties: GILLIP et al. v. BUTTS.
• Court: Missouri Court of Appeals

77 S.W.2d 1014

GILLIP et al. v. BUTTS.

No. 18171.

Kansas City Court of Appeals. Missouri.

October 13, 1934.

Rehearing Denied December 3, 1934.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

"Not to be published in State Reports."

Suit by Bertha Gillip and others against D. H. Butts, wherein defendant filed a counterclaim. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

Horace Merritt, of St. Joseph, for appellant.

John E. Heffley, of St. Joseph, for respondents.

BLAND, Judge.

This is a suit on account wherein plaintiff claims a balance due from the defendant of $116.00. The action was instituted in a justice court, by attachment. Defendant filed a plea in abatement and also an answer to the merits consisting of a general denial and a counterclaim. In the latter defendant claimed a balance of $50.78 due him. The plea in abatement and the cause on the merits were tried together before the court without the aid of a jury. The court overruled the plea in abatement and rendered judgment in favor of the plaintiff in the sum of $116.00. Defendant has appealed.

The facts show that defendant was born and reared in St. Joseph; that sometime prior to the year 1929 he located at Troy, Kansas, and there conducted a cleaning and pressing business; that in 1929 he moved to Wathena, Kansas, about seven miles across the state line from St. Joseph, and there operated a cleaning and pressing shop; that in carrying on his business in Wathena, he would travel in the vicinity of that place in his automobile and gather up clothes from his customers; that in 1929, not being fully equipped to clean clothes in his shop, he brought them over to St. Joseph to the place of business of the plaintiff for cleaning and pressing; that in June 1929, plaintiff employed defendant to work for her as operator of a pressing machine. It is as the result of these business relations between the parties that this suit and counterclaim arose.

In the spring of 1932 defendant had an automobile which he used in his business at Wathena. He drove it under a Kansas license. After July 26, 1932, the date he claims to have moved his residence to St. Joseph, he continued to drive back and forth from that city to Kansas gathering up clothes from his customers, bringing them over to St. Joseph to be cleaned in the shops located there and returning them to his customers. In September, 1932, he bought another car in St. Joseph, from Mr. Canby and transferred his Kansas license to the new car. It was the new car that was seized under the attachment writ in this suit. Defendant continued to use his new car, driving back and forth from St. Joseph to Kansas, gathering up clothes for cleaning and pressing.

The affidavit of attachment is dated December 30th, 1932. It was the contention of the defendant at the trial that on that date he was a resident of the State of Missouri and not the State of Kansas as alleged in the affidavit. It was claimed at the trial that he sold out his cleaning and pressing shop in Wathena and moved to St. Joseph on July 26, 1932. Plaintiff brought out that he voted in the State of Kansas in November, 1932; that the automobile in controversy bore a Kansas license; that he told Mr. Canby, from whom he bought a car in September, 1932, that his business and mailing address was Wathena, Kansas; that he gave Canby a chattel mortgage upon the car he purchased from the latter, which mortgage was filed by Canby at Troy, Kansas, because defendant gave that place as his business and mailing address.

The note and chattel mortgage were introduced in evidence, but they are not printed in the abstract brought here by the defendant. The abstract merely recited that: "These exhibits were note and chattel mortgage executed by D. H. Butts to Canby." It appears that the defendant wrote certain letters to the plaintiff, which were introduced in evidence. These letters are not printed in the abstract, defendant giving the following excuse for his failure to do so: "These letters cannot be printed for the reason that the plaintiff has not on request of appellant's attorneys produced the exhibits. They seem to have been lost, but they consisted of letters written by the defendant to the plaintiff at various times before the filing of this suit about the account between them."

Defendant objected to the introduction in evidence of these exhibits, which objections were overruled. It appears from his objections that they contain some admissions on the part of the defendant relative to his indebtedness to the plaintiff. They also had some bearing upon the question of his residence.

Plaintiff also introduced as a witness, one George Ball, who testified that in 1932 he ran a filling station; that in that year he sold some tires to the defendant, who gave his address as Wathena, Kansas. The witness identified a paper as a sales slip signed by the defendant. The record shows that this sales slip was offered in evidence. Objection was made to it. The objection was overruled and the slip admitted. It evidently had some bearing upon the question of defendant's residence. Several of these sales slips were admitted in evidence, but defendant failed to print any of them in the abstract, because: "We are unable to obtain these exhibits, as Mr. Ball took them away with him, but they merely showed mail address given by Mr. Butts as `Wathena, Kansas.'"

It is insisted by the defendant that the court erred in admitting certain evidence in connection with the plea in abatement. In this connection defendant contends that facts or circumstances relative to the nonresidence of the defendant prior to December 30, 1932, were not competent. Defendant objected to the testimony of Canby relative to defendant giving his business and mailing address as Wathena, Kansas, when he bought the new car. The objection was made after the witness testified and, therefore, came too late.

At the close of all of the testimony the defendant moved to strike out all of the evidence offered by the plaintiff having any bearing on the question of nonresidence of the defendant prior to December 30, 1932. We do not find that any testimony relative to the matter objected to except the aforementioned testimony of the witness Canby, which objection, as we have stated before, came too late.

However, it having been shown (in fact admitted) that defendant was a resident of the state of Kansas in the year 1929, and to and including the fore part of the year 1932, a presumption arose that he continued to remain a resident of that state (22 C. J. p. 89; Walker's Estate v. Walker, 1 Mo....