Jenkins v. Emmons

• Decision Date: 27 February 1906
• Parties: JENKINS v. EMMONS.
• Court: Missouri Court of Appeals

94 S.W. 812

117 Mo. App. 1

JENKINS v. EMMONS.

St. Louis Court of Appeals. Missouri.

February 27, 1906.

1. WITNESSES — COMPETENCY — PARTIES — ONE PARTY DECEASED.

Rev. St. 1899, § 4652, providing that parties and persons in interest shall not be disqualified as witnesses in civil suits, provided that, where one of the original parties is dead or insane, or, with certain exceptions, is an administrator or executor, the other party shall not be permitted to testify, does not render incompetent any one who would have been a competent witness at common law.

2. SAME—COMMON-LAW RULE.

Where the contents of a written material instrument of evidence have been proved, a party is competent at common law to testify as to the facts and circumstances of its loss, and hence such testimony is competent against an administrator, under Rev. St. 1899, § 4652, excepting a party testifying against a deceased person or an administrator from the abrogation of the common-law rule of exclusion.

3. LOST INSTRUMENTS — ACTIONS — INSTRUCTIONS —EVIDENCE—SUFFICIENCY.

Where, in an action on a lost note, there was testimony by one who had read the note that it bore 6 per cent. interest, it was not error to give an instruction authorizing the jury to find that the note bore such interest.

4. SAME.

Where, in an action on a lost note, the evidence showed that the plaintiff was named as payee of the note, that it was delivered to her and remained in her possession until lost, and there was no evidence that she ever parted with possession or ownership of such note, it was not error to give an instruction authorizing the jury to find that it was her property at the time of the loss.

5. APPEAL AND ERROR—AFFIDAVITS—FAILURE TO INTRODUCE IN EVIDENCE.

Affidavits never offered in evidence or called to the attention of the trial court, and filed for the first time in the appellate court, will not be considered on appeal.

Appeal from Circuit Court, St. Charles County; Jas. D. Barnett, Judge.

Proceedings by Amanda F. Jenkins to procure an allowance against Ben L. Emmons, administrator of John Enoch. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T. C. Bruere, for appellant. Chas. T. Daudt and Alfred Hovey, for respondent.

BLAND, P. J.

The plaintiff procured an allowance for $1,156.50 against the estate of John Enoch, deceased, in the St. Charles probate court. The administrator appealed to the circuit court, where, on a trial de novo to a jury, she recovered a judgment for $1,225, from which the administrator appealed to this court.

The claim, as presented to the probate court and on which the case was tried, reads as follows: "The estate of John Enoch, deceased, to Amanda F. Jenkins, Dr. For the amount of a promissory note executed and delivered by the said John Enoch to the said Amanda F. Jenkins, dated on or about June 12, 1901, due one year after date and bearing interest from date at the rate of six per cent per annum, which note has been lost, mislaid or destroyed, so that the same cannot be produced, which note was for this sum of one thousand (1,000) dollars. Interest to be added from the date of the note to the date of allowance. [Signed] Amanda F. Jenkins, per R. C. Haeussler, Atty." The claim is duly verified by the affidavit of the claimant. The evidence shows that John Enoch died in January or February, 1902.

The evidence of Mary J. Bunker, the widowed daughter of plaintiff, and a witness for her, shows that, while she and her mother were summering at Lake View, Mich., in 1901, the plaintiff, on the written request of Enoch, expressed to him, at Kansas City, Mo., $1,000 in currency, and Enoch acknowledged the receipt of the money by letter and inclosed his promissory note for $1,000, dated June 12, 1901, payable to plaintiff, due one year after date and bearing interest at the rate of 6 per cent. per annum. Witness testified that she read the letter, read the note, and afterwards, on one or two occasions, saw the note in the possession of her mother. Another of plaintiff's daughters, Mrs. L. J. Gallup, testified that she had seen and read the note, knew the signature of Enoch, and that the note was signed by him, dated June 12, 1901, and was for the sum of $1,000, payable to her mother Mrs. Bunker testified that she lived with her mother, and she and her mother had repeatedly hunted for the note, after learning of Enoch's death; had searched her mother's desk where she kept her papers, and searched the premises generally, but had been unable to find the note. The plaintiff testified that she had the note in her possession after March 26, 1902, the date on which letters of administration were granted. Plaintiff's examination proceeded as follows: "Q. (By the Court): What became of the note? A. Well, I think I lost it; I certainly lost the note. Q. Do you remember any occasion when you think you lost the note? A. Yes, sir; I think I lost it at the time I was going to send it to the administrator. Q. When was that? A. It was the latter part of May. Q. What makes you think you lost it on that occasion? A. Well, because I had it out, and I was preparing to send it to the administrator and when I went to— Objection by Mr. Bruere: We object to that. It seems to me the only question is, was the note lost? not what she did to the administrator. The Court: The objection is sustained as to that. Q. Well, the note was lost? A. Yes, sir. Q. Now, is that note the one that was mentioned by Mrs. Bunker in her testimony? A. Yes, sir. Q. Have you since that time or on that occasion and since made any search for this instrument? A. Yes, sir. Q. With what result? A. I have never found it. Q. How often have you searched for it? A. Oh, I have searched for it many times. Q. Where have you searched for it? A. All through my writing desk and through my house and every place. Q. When did you say that was? A. In the latter part of May. Q. Where were you living then? A. Clarks Hill. Q. Where are you living now? A. I am living in Indianapolis now. Q. Have you moved your residence more than once since that time? Objection by Mr. Bruere: We object to that, if your honor please. The Court: The objection is sustained. Q. Have you continued the search for that note, Mrs. Jenkins? A. Yes, sir. Q. Up to what time? A. Well, up to the present time I guess. I have always looked for it. Q. And have you been able to find it? A. No, sir." Defendant objected to all the foregoing evidence of plaintiff, on the ground that, Enoch being dead, the plaintiff was not a competent witness for any purpose. His objection was overruled, and an exception saved to the ruling.

1. Defendant insists that his objection to the competency of the plaintiff as a witness should have been sustained. Section 4652, Rev. St. 1899, enacts: "No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise. * * * Provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify." And further provides that, where "an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator." We doubt if the plaintiff comes within any of the exceptions named in the statute, and think, if the statute is given a literal construction, she was not a competent witness for any purpose. In some of the cases, it has been held that the statute is in derogation of the common law; in others, that the statute should have a liberal construction in order to thoroughly effectuate its purpose (Berlin v. Berlin, 52 Mo. 151), and that it should be construed to conform to its spirit rather than its strict letter (Banking House v. Rood, 132 Mo. 256, 33 S. W. 816). In Meier v. Thieman, 90 Mo., loc. cit. 442, 2 S. W. 438, it is said: "The substance of the provision is that, if both parties are alive, both may testify, but, if one be dead, then the common law is in full force as to the competency of the survivor as a witness in his own favor." Dr. Wharton says: "Much, however, as the statutes may differ in words, they are the same in purpose. That purpose is to provide that, when one of the parties to a litigated obligation is silenced by death, the others shall be silenced by law." 1 Whart....