Hinshaw v. Raines

• Decision Date: 01 May 1916
• Docket Number: No. 11927.,11927.
• Parties: HINSHAW v. RAINES.
• Court: Missouri Court of Appeals

185 S.W. 1192

HINSHAW v. RAINES.

No. 11927.

Kansas City Court of Appeals. Missouri.

May 1, 1916.

Appeal from Circuit Court, Atchison County; William C. Ellison, Judge.

"Not to be officially published."

Action by Dennis Hinshaw against E. N. Raines, executor of the estate of David Alliston, deceased. Judgment for the plaintiff and defendant appeals. Affirmed.

W. R. Littell, of Tarkio, for appellant. James F. Gore and E. G. Frazier, both of Rockport, for respondent.

TRIMBLE, J.

This is a suit against the estate of David Alliston, deceased, for services rendered in the way of board, care, and attention, given the deceased during the years from 1905 down to his death in 1914. The case originated in the probate court upon the filing of a demand in proper form, wherein plaintiff asked judgment for something over $3,000. The case was tried in the probate court, and plaintiff obtained judgment for $1,500. On appeal by the executor to the circuit court the case was tried anew, and the plaintiff obtained a verdict for $1,000, the reversal of which the defendant asks in this appeal.

The attack made by appellant on the sufficiency of the statement cannot be sustained. The only attack properly preserved in the record is by an objection to the introduction of any testimony made in the circuit court when the case went to trial therein, on appeal from the probate court. The statement ran thus:

"Estate of David Alliston Dr. to Dennis Hinshaw. To board, room and care of the person and effects of David Alliston at the special instance and request of the said David Alliston, as follows."

Then followed a number of items for each of the years from 1905 to 1913, both inclusive, stated thus:

"During the year 1905, 40 weeks at $12.00 per week — $480"

— followed by the total of all the items, and duly sworn to. Having originated in the probate court, the account is not subject to the same strictness of pleading in the circuit court, nor to that required by the statute relating to accounts in mechanic's liens. It stated a cause of action, since it disclosed the nature of the claim and informed the executor of what he was called upon to defend against, and was sufficient. Christianson v. McDermott, 123 Mo. App. 448, 100 S. W. 63. Moreover, the alleged insufficiency was waived by going to trial on the merits. Sandusky v. Courtney, 168 Mo. App. 325, 153 S. W. 1084.

Although defendant joined with plaintiff in submitting the case to the jury without asking a demurrer to the evidence either at the close of the case in chief or at the end of the entire case, yet it is now contended that there is no legal testimony to support the verdict. We think the contention is without merit even if a demurrer had been asked, since there was substantial evidence that the deceased, an old man and unmarried, not of kin to the Hinshaws, went to live with them in 1905 and thereafter made his home with them from that time until his death in 1914, except such times in each year as he was away on trips for his health or otherwise; that owing to his habits and age he was burdensome to have around; that the Hinshaws cared for him well, boarded him, did his washing and otherwise looked after his wants; that during the last five years of his...