Kleinberg v. Kinealy

• Decision Date: 06 November 1918
• Docket Number: No. 16134.,16134.
• Citation: 207 S.W. 237
• Parties: KLIENBERG v. KINEALY.
• Court: Missouri Court of Appeals

207 S.W. 237

KLIENBERG v. KINEALY.

No. 16134.

St. Louis Court of Appeals. Missouri.

November 6, 1918.

Rehearing Denied January 6, 1919.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

"Not to be officially published."

Action by Mary Kleinberg against James R. Kinealy, administrator with the will annexed of the estate of Patrick Heneher, deceased. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

William B. Kinealy, of St. Louis, for appellant.

William L. Bohnenkamp, of St. Louis, for respondent.

BECKER, J.

This case is here on second appeal. The opinion rendered on the first appeal was not officially published, but is to be found in 193 S. W. 981. It contains a detailed statement of the facts.

For all intents and purposes of this appeal the testimony adduced on the second hearing of the claim is practically the same as that on the former appeal, and therefore we will not burden this opinion with a restatement thereof. It is sufficient to state that this is a proceeding begun in the probate court of the city of St. Louis to establish a demand against the estate of Patrick Heneher, deceased, for services rendered by the claimant, Mary Kleinberg, to the said Heneher during his lifetime.

The claim having been allowed in the probate court, the defendant administrator appealed to the circuit court, where upon a trial de novo before the court and a jury a verdict and judgment resulted in favor of the plaintiff, from which judgment defendant prosecuted an appeal, and upon a hearing thereof in this court the judgment was reversed, and the cause remanded. Before the rehearing nisi the claim was amended by withdrawing three of the items thereof, which left the claim as follows, to wit:

                To household work from Feb. 22
                  1874, to Sept. 13, 1900.......... $1,220 00
                Laundrying and mending deceased's
                  clothes from Sept. 13, 1900, to
                  March 8, 1913....................    710 00
                     Total amount due.............. $1,930 00
                

At the trial, in addition to practically the same testimony that had been adduced at the first hearing, some additional testimony was introduced on the part of the claimant. Upon submission of the cause to the jury a verdict resulted for the full amount of the claim, and judgment was rendered thereon. After an ineffectual motion for new trial the defendant brings this appeal.

The first point made by the appellant is that the court erred in refusing defendant's peremptory instruction in the nature of a demurrer. We have heretofore, when this case was here on former appeal, determined this point adversely to appellant, holding that the claimant had adduced evidence' sufficient to take the case to the jury. The present record discloses that the claimant in the second trial adduced further testimony in addition to that which was found in the record of the first case. The ruling in the former appeal became the law of the case when reversed and remanded, and such ruling is therefore res adjudicata. See Barrett v. Stoddard County, 272 Mo. 129, 197 S. W. 914; Meriwether v. Publishers, 224 Mo. 617, 123 S. W. 1160; Cracey v. City of St. Louis, 221 Mo. 1, 119 S. W. 949, and cases cited. We therefore rule this point against appellant. Kleinberg v. James H. Kinealy, etc., 193 S. W. 981.

We have carefully examined the assignment of error urged in appellant's brief and argued before us that the trial court erred in admitting certain testimony. Upon examination we find...