Hoshaw v. Fenton
Decision Date | 07 December 1937 |
Parties | WM. O. HOSHAW, EXECUTOR OF THE ESTATE OF JOHN E. HOSHAW, DECEASED, RESPONDENT, v. HALLIE FENTON, APPELLANT |
Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Lawrence County.--Hon. Emory E Smith, Judge.
AFFIRMED.
Judgment affirmed.
F. P Sizer, Wm. J. B. Myers and Clarence E. Reed for appellant.
Gardner & Gardner and McPherson & Stemmons for respondent.
The executor of the estate of John E. Hoshaw, deceased, brought an action in replevin in the circuit court of Lawrence County, returnable to the January term, 1936, thereof, to recover an automobile. On the first day of the said January term defendant filed her answer and counterclaim, which said counterclaim was stricken upon motion of plaintiff. An amended answer and reply were filed, and trial was had before the court on January 21, 1937, resulting in a judgment for plaintiff, and an appeal was duly taken by defendant.
The petition in replevin is in conventional form. The answer was a general denial, and by way of counterclaim, defendant asked for a judgment for $ 3800 which she claimed was due her for services rendered John E. Hoshaw during his lifetime. Over the objection of defendant the court sustained plaintiff's motion to strike the counterclaim. The amended answer thereafter filed was substantially the same as the original except as to the counterclaim. By way of a new defense, defendant invoked the equitable jurisdiction of the court, and asked that the court declare that the plaintiff holds legal title to the said automobile in trust for her.
John E. Hoshaw died October 13, 1935, and thereafter plaintiff qualified as executor of his will. As such executor, plaintiff demanded of defendant the automobile in controversy which defendant had in her possession. This demand was made by virtue of a copy of the original title to the automobile which was then on file with the commissioner of motor vehicles of Missouri, the copy being in the hands of plaintiff. Upon defendant's refusal to deliver possession, this action was instituted. Subsequently, plaintiff obtained a transfer of title to the automobile, and a new certificate was issued to him personally, and he has had possession and use of the automobile since that time.
The evidence discloses that the defendant, Hallie Fenton, worked for John E. Hoshaw for a number of years preceding his death, rendering services of various kinds, such as driving him in his car, nursing and caring from him when he was sick, cooking his meals, and doing his secretarial work; that deceased was an elderly man, about eighty years of age, and that during the later years of his life, had two or three serious operations. On September 22, 1935, the defendant drove John E. Hoshaw to a hospital in Springfield in a new Dodge automobile which he had recently purchased. After taking Mr. Hoshaw to the hospital, Miss Fenton returned to Mt. Vernon in the car. On September 24, she and Mr. Wilder went back to the hospital in Springfield in the car, and while there, Mr. Hoshaw gave her the following paper:
John Fenton testified that Mr. Hoshaw told him that the car was Hallie Fenton's. Mr. Chandler testified:
Centificate of title in the name of John E. Hoshaw, dated September 18, 1935, was introduced, on the back of which appears the assignment by W. O. Hoshaw, executor of the estate of J. E. Hoshaw, deceased, to W. O. Hoshaw. A certificate was also introduced showing the car duly registered and issued to John E. Hoshaw, of Mt. Vernon. There was evidence introduced in an effort to show that John E. Hoshaw, deceased, at the time of signing the purported assignment to Miss Fenton, was not mentally capable of transacting business, and there was some testimony to the contrary.
The grounds upon which defendant seeks a reversal of this case are embodied in six assignments of error, as follows:
The third and fifth assignments are of a kindred nature, and will be considered together. We think the court erred in admitting testimony relating to the sanity of John E. Hoshaw. Whether he was mentally competent or not could in no way affect the result of this case, and it clearly appears from the record that this testimony had nothing to do with the findings of the trial court. The error was harmless, and we would not be justified in reversing the case on that ground.
To support her sixth assignment, which we shall consider next defendant relies upon one of the provisions of section 777, Revised Statutes Mo. 1929, which provides that a counterclaim may be set up in "a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action." Defendant's counterclaim is based upon the rendition of services by her to the deceased, John E. Hoshaw, during a number of years preceding his death. The petition in this case is an ordinary petition in replevin to recover possession of an automobile. We are unable to reach ...
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