Hoshaw v. Fenton, 5875.

• Decision Date: 07 December 1937
• Docket Number: No. 5875.,5875.
• Parties: WM. O. HOSHAW, EXECUTOR OF THE ESTATE OF JOHN E. HOSHAW, DECEASED, RESPONDENT, v. HALLIE FENTON, APPELLANT.
• Court: Missouri Court of Appeals

110 S.W.2d 1140 WM. O. HOSHAW, EXECUTOR OF THE ESTATE OF JOHN E. HOSHAW, DECEASED, RESPONDENT,
v.
HALLIE FENTON, APPELLANT. No. 5875. Springfield Court of Appeals. Missouri. December 7, 1937.

[110 S.W.2d 1141]

Appeal from the Circuit Court of Lawrence County. — Hon. Emory E. Smith, Judge.

AFFIRMED.

F.P. Sizer, Wm. J.B. Myers and Clarence E. Reed for appellant.

Gardner & Gardner and McPherson & Stemmons for respondent.

FULBRIGHT, J.

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

110 S.W.2d 1142

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...