Hensgen v. Donnelly

• Decision Date: 01 February 1887
• Citation: 24 Mo.App. 398
• Parties: JOHN HENSGEN, EXECUTOR, Respondent, v. PATRICK DONNELLY ET AL., Appellants.
• Court: Missouri Court of Appeals

24 Mo.App. 398

JOHN HENSGEN, EXECUTOR, Respondent,

v.PATRICK DONNELLY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 1, 1887.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

M. MCKEAG, for the appellants: The referee illegally and improperly admitted the books of the deceased in evidence. Hissrick v. McPherson, 20 Mo. 310; Anderson v. Volmer, 83 Mo. 403; Ives v. Waters, 30 Hun, 297; Rhoads v. Gaul, 4 Rawle, 404.

I. D. FOULON, for the respondent: The grounds of exceptions to the rulings must be stated, and the grounds stated alone will be considered by the appellate courts. Fox v. Young, 22 Mo. App. 387; Blakely v. Railroad, 79 Mo. 388; Margrave v. Ausmuss, 5 Mo. 561; The State v. Price, 9 Mo. App. 581; Prim v. Raboteau, 56 Mo. 407; Carver v. Thornhill, 53 Mo. 285; Saxton v. Allen, 49 Mo. 417.

LEWIS, P. J., delivered the opinion of the court.

This is a suit on an open account for work and labor and articles furnished on the defendant's request by the plaintiff's testator, in his life time. The cause was sent to a referee, upon whose report a judgment confirming it was rendered in the plaintiff's favor for $564.95.

The original petition claimed a balance due of $468.05. While the matter was pending before the referee, the plaintiff obtained leave of the court to file an amended petition and supplemental bill of particulars. He thereupon filed an amended petition with a new list of charges, which, added to the account in the first petition, made an aggregate of $1,350.90. The appellants filed, with their exceptions to the referee's report, an affidavit, in which it was shown that a certain part of the bill of particulars now appearing with the amended petition was not appended to that paper at the time of its filing; but that the plaintiff afterwards, “without the knowledge or consent of the defendants, pasted to the bill of particulars, and over several words and figures which were part of said bill filed with said amended petition, obliterating, defacing, and covering up said words and figures, thus changing and altering the bill of items as were originally filed with the plaintiff's amended petition.” A counter-affidavit shows that, upon an objection by the defendants' attorney to the introduction of any evidence in support of the items of account filed with the original petition, the plaintiff's attorney, by leave of the referee, copied those items and attached them to the supplemental account filed with the amended petition, “so as to make the paper conform to the order of the court in every respect.” The defendants complain that the court erred in refusing to sustain their exceptions to these proceedings before the referee. The transcript before us contains nothing whatever by which it may be seen how this pasting, or attaching, was done, or its effects, if done at all. There is, therefore, nothing before us in this connection, except the question whether the court was right in its conclusions upon the credibility and effect of the affidavits. This question is necessarily controlled, to some extent, by the appearance of the original papers, which we have no means of inspecting. We are, therefore, unable to pass intelligently upon the question presented.

The following entry appears in the bill of exceptions:

“Plaintiff offers in evidence the books of accounts of the deceased, John Hensgen, marked here in exhibits A, B, C, D, E, F, G, and H, respectively. The defendants object to the said exhibits as evidence, as incompetent, in this, that they don't appear to be the daily entries of the deceased, because they are erased and in a mutilated condition, and because they are not all the books in which the accounts of the defendants with the deceased were kept, and because the executor has not properly qualified for the admission of them as evidence. Objection overruled and the defendants except, and the said exhibits are admitted in evidence.”

The referee in his report reviews with much elaboration the testimony submitted to him, and reaches his conclusions by extended analyses and comparisons of the numerous entries and facts proved. We need not stop to consider to what extent his deductions are justified by the proofs. It is manifest that he gave throughout a controlling weight to the book entries as evidence of what they purported to show, and that without them he could not have found upon the issues as he did. It is, therefore, of the first importance to determine whether his conclusions, so reached, could be sustained by the trial court without error.

The law is well settled in Missouri, that the book accounts and entries of a party are not admissible as evidence in his favor, and that the rule is not changed in favor of the legal...