Jones v. Jones

• Decision Date: 01 March 1915
• Citation: 175 S.W. 227,188 Mo.App. 220
• Parties: COREAN JONES, et al., Appellants, v. EDWARD JONES, et al., Respondents
• Court: Kansas Court of Appeals

175 S.W. 227

188 Mo.App. 220

COREAN JONES, et al., Appellants, v. EDWARD JONES, et al., Respondents

Court of Appeals of Missouri, Kansas City

March 1, 1915

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

Judgment affirmed.

Ball & Ryland, and Albert F. Drake for appellants.

(1) The proceedings of the court in this case deprived the appellants of property without due process of law and denied to them the equal protection of the law within the meaning of section 30 of article 2 of the Constitution of Missouri and of section 1, article 14, of the Amendments to the Constitution of the United States. These constitutional provisions were duly invoked by the appellants in paragraph 7 of their motion for a new trial. It would seem clear that these constitutional questions being involved, the appeal should be transferred to the Supreme Court for determination. (2) There was no evidence on which to base a finding and judgment of value of the goods or damages for their detention. The unvarying rule under decisions of this State is that in inquiry as to value in such cases must be directed to the question of their reasonable market value at the time of the trial. Chemical Co. v. Nichols, 66 Mo.App. 686; Standard Oil Co. v. Meyer Bros. Drug Co., 84 Mo.App 81; Bradley v. Campbell, 132 Mo.App. 80; Paine v King, 141 Mo.App. 250.

Boyle & Howell, Geo. L. Boyle and Jos. S. Brooks for respondents.

(1) The plaintiff was not entitled to the continuance of her cause by reason of the fact that she was imprisoned in the penetentiary in the State of New York. The statute of Missouri that a sentence of imprisonment in the penetentiary suspends all civil rights applies only to a sentence in the State courts. Presbury v. Hull, 34 Mo. 29, 34; Platner v. Sherwood, 6 John. Chy. 118. (2) The evidence in the case was sufficient to sustain the verdict. No objection was made nor exception taken to its admission at the time of the trial. The Abstract of Record does not show all the evidence in the case and this court cannot pass upon the sufficiency of the evidence as abstracted by appellants. The evidence is not set forth in the Abstract of Record but only the conclusions of the appellants as to what was the evidence offered at the trial. Moore v. Harmes, 123 Mo.App. 34; Plumbing Co. v. Brewing Co., 126 Mo.App 270; Reed v. Peck, 163 Mo. 333; Davis v. Vories, 144 Mo. 235; Zweigart v. Birdseye, 57 Mo.App. 462.

OPINION

TRIMBLE, J.

The plaintiff, Corean Jones, brought a replevin suit in the circuit court of Jackson county, Missouri, for certain household articles, furniture and bric-a-brac that once formed a part of the personal estate of Frank Jones, deceased. Under the writ she took possession thereof, giving a redelivery bond with certain sureties, who have appealed naming plaintiff as one of the appellants.

Defendants filed an answer which contained a general denial, a claim of the property and a demand for its return or for judgment against plaintiff and her sureties for its value, alleged to be the sum of $ 900.

The case came on for trial on June 26, 1913, at the May term of said court. At that time, Corean Jones was perhaps in prison in the State of New York. At least she was not present and the fact that she was incarcerated in said State was alleged in a motion filed by her sureties in behalf of themselves and of plaintiff asking for a postponement of the trial to a later date in that division of the circuit court or that an order be made returning the case to the assignment division. Said motion assigned the following reasons:

1. Because plaintiff "cannot be present at this time at the trial of this cause for the reason that she is incarcerated in the State of New York."

2. Because the attorney employed by one of the sureties, the United States Fidelity & Guaranty Company "is now at the time of the filing of this motion and the presentation of the same to the court actually engaged in the trial of a case pending in the circuit court of Jackson county, at Kansas City, Missouri, in Division 3, thereof, and now being heard by George H. English, Jr., the duly appointed referee therein, and said counsel is "engaged" within the meaning of rule 22 of this court."

This motion, with the evidence in support thereof, was heard and overruled. Thereupon the case went to trial before the court and a jury; but no one was present representing plaintiff or her sureties, none of them being represented at said trial either in person or by attorney. The jury returned a verdict for defendants and assessed the value of the property taken at $ 1200, which a remittitur of defendants reduced to $ 900, and judgment was accordingly entered that defendants have and recover the property or the value thereof. An appeal was duly perfected.

The motion presented was not a regular application for a continuance such as is contemplated by the statutes, sections 1955, 1956, and 1957, Revised Statutes 1909. It contains none of the usual statements as to diligence, or of the impossibility to proceed without plaintiff's evidence or presence, or of any efforts to secure her testimony. Indeed there is no allegation that her presence is necessary or that she is in a position to testify to any material fact in the case, or that she has a meritorious cause of action or desires to further prosecute her case. The affidavit filed by the attorney for the Surety Company contains no such allegations, nor can it be construed as relying upon anything other than rule 22 of the circuit court for such continuance. Nor is there any affidavit stating that plaintiff is in prison or is unavoidably absent. Even if the motion should be treated as a statutory application for continuance, there is no affidavit accompanying it "setting forth the facts on which the application is founded" as required by section 1956, except the fact that the surety company's attorney was "engaged" within the meaning of rule 22. Even where the unavoidable absence of a party litigant is established, this is not always a ground for continuance. [Owens v. Tinsley, 21 Mo. 423, l. c. 425.] "The unavoidable absence of a party furnishes no ground for a continuance, when it does not appear that he is a material witness for himself, and that it was impossible to take his deposition for the trial." [Hurck v. St. Louis Exposition, 28 Mo.App. 629.] The trial court's action on an application for continuance is subject to review. [A. v. Grosclose, 61 Mo.App. 409.] But every intendment exists in favor of its action. [Blair v. Chicago and Alton Ry. Co., 89 Mo. 383, 1 S.W. 350; Shirk v. Shirk, 75 Mo.App. 573.] The postponement of a trial because of the absence of counsel is a matter resting largely in the discretion of the trial court, and its action will not be interfered with on appeal unless such discretion has obviously been abused. [St. Louis, Cape Girardeau etc., R. Co. v. Holladay, 131 Mo. 440, 33 S.W. 49.] In this case the counsel whose affidavit is filed was not employed by plaintiff as her counsel but by one of the sureties. And, as stated, it nowhere appears that plaintiff has a meritorious cause of action or that she desires to further prosecute her case. This may not affect the rights of the sureties to protect themselves but, in what has just been said, we are dealing with the propriety of the court's ruling with reference solely to plaintiff's rights as a party litigant.

If the unsupported statement in the motion that plaintiff is incarcerated in New York be accepted as true, she was not entitled to a postponement of her case on the ground that she was civiliter mortuous or that her civil rights were suspended, under section 2891, Revised Statutes 1909. The statute of this State suspending the civil rights of those sentenced to the penitentiary for a term less than life applies only to sentences by the State courts. [Presbury v. Hill. 34 Mo. 92; Platner v. Sherwood, 6 Johnsons Chancery Cases 118.]

There is, therefore, no ground upon which the trial court's action in overruling the motion can be disturbed so far as plaintiff's rights are concerned. Nor can the motion be treated as an application for a continuance under the statute. It is wholly insufficient for that purpose whether plaintiff's rights or those of her sureties are considered. Indeed, so far as the record discloses, it would seem that plaintiff, after getting possession of the property, left the State taking it with her, and, having possession of the property, is no longer interested in the "prosecution of the action with effect and without delay, or in the return of the property if return thereof be adjudged or the payment of the assessed value thereof with damages in default of such delivery" as required of her by section 2639, Revised Statutes 1909. If this be true, then the only parties complaining of the trial court's action are the sureties who came into the trial court and asked a continuance solely on the ground that counsel for one of the sureties on the replevin bond was "engaged" within the meaning of rule 22. This does not overlook the fact that plaintiff is named in the motion as one of its movents, but since the motion makes no allegations concerning the necessity of plaintiff's presence at the trial or concerning any of her rights in the premises, or the likelihood of her securing a favorable adjudication of her cause, or of diligence used to bring about that result, we may infer that none of such facts exist else they would have been alleged and supported by affidavit; and we may also infer that it is the sureties who are in reality seeking the continuance in order that they may protect themselves from liability on the replevin bond. And they seek the continuance not upon any claim that any facts exist giving plaintiff or...