Lee's Adm'x v. Lee

• Decision Date: 31 October 1855
• Citation: Lee's Adm'x v. Lee, 21 Mo. 531 (Mo. 1855)
• Parties: LEE'S ADMINISTRATRIX, Respondent, v. LEE, Appellant.
• Court: Missouri Supreme Court

21 Mo. 531

LEE'S ADMINISTRATRIX, Respondent,

v.LEE, Appellant.

Supreme Court of Missouri.

October Term, 1855.

1. Where a record is offered in evidence, to show the fact that there is a judgment, the object being to support an execution under such judgment, it is not necessary that the entire record should be offered and read in evidence. A transcript of so much of the record as will show the existence of the judgment under which the execution issued, may, in such cases, be received in evidence.

2. In an action by A., as administratrix of B., for a conversion of property owned by her as such administratrix: held, that the defendant is not entitled to set off a debt due from the intestate, B., in his lifetime.

3. The supreme court will not, under the practice act of 1849, reverse a judgment because the inferior court, in the exercise of its discretion, permitted the plaintiff to amend his petition and change his cause of action from one in the nature of assumpsit, to one in the nature of an action of trover; and that, too, although the effect of such amendment may be to prevent the defendant from availing himself of a matter of set-off which he had well pleaded to the original petition.

Appeal from Madison Circuit Court.

This was an action for the conversion of certain mineral ashes of the plaintiff, as administratrix of Archelaus Lee, deceased. The defendant claimed the ashes under a purchase at an execution sale of the intestate's property. There was evidence tending to show that the ashes were purchased in by the defendant for the benefit of Archelaus Lee; and that the said Archelaus advanced part of the consideration.

The following instructions, among others, which it is unnecessary to notice, were asked for by the defendant, and refused by the court:

“3. If the jury believe from the testimony, that there was a secret understanding between Archelaus (the plaintiff's intestate) and Giles Lee (the defendant), that he (Giles) should purchase in said ashes for the benefit of the said Archelaus Lee, then this was a legal fraud, and the parties should be left where they are, and the finding should be for the defendant.”

“4. If the jury believe from the testimony, either verbal or written, that the mineral ashes in question were sold by the sheriff of Jefferson county under an execution in favor of Wm. and Thos. Boyd, and against Archelaus and L. H. Lee, upon a judgment of the Circuit Court of said county, in favor of said Boyds and against said Lees, and that Giles Lee purchased said ashes at said sale fairly, and paid for them, then the legal title of the same passed to the defendant; and, unless the jury further believe he afterwards sold them to plaintiff, or parted with the title, they will find for the defendant.”

The other facts of the case sufficiently appear in the opinion of the court.

Whittelsey and Green, for appellant.

1. The court erred in striking out the set-off of defendant. The plaintiff's cause of action came to her as the administratrix of A. Lee, and accrued before his death. The amendment of the petition could not destroy defendant's right to plead set-off. (R. C. 1845, p. 1005, sec. 2. Smith v. Kennett, 18 Mo. Rep. 154.) 2. The court erred in withdrawing from the jury the transcript of the record offered in evidence by the defendant. ( Barker v. Miller, 6 J. R. 195. Blackledge v. Shelton, 7 J. R. 32. 7 Mon. 386. 3 A. K. Marsh. 452. 8 Mo. 455.) 3. The third and fourth instructions asked for by defendant should have been given. ( Flowers v. Sproule, 2 A. K. Marsh. 54.)

Frissell, Noell and Pipkin, for respondent.

1. The court did not err in excluding the transcript. A certified copy of part of a record is inadmissible.) Philipson v. Bates' exec'r, 2 Mo. 95. Sparr v. Wellman, 11 Mo. Rep. 230.)

RYLAND, Judge, delivered the opinion of the court.

This was an action by the administratrix of Archelaus Lee, deceased, against Giles Lee, for the price of some mineral ashes sold and delivered to the defendant.

The defendant, Giles Lee, filed his answer denying his indebtedness to the estate of Archelaus Lee, deceased, denying his purchase of any mineral ashes or other property or goods of Rebecca Lee or of Archelaus Lee, deceased, and also sets up in offset a debt due from the intestate to the defendant.

The plaintiff obtained leave and amended her petition. She changed her cause of action, declaring for goods of the plaintiff, as administratrix, converted by the defendant after the intestate's death. That is, the action was changed from the old action of assumpsit, as formerly known to us, into the action of trover. The defendant claimed the ashes under a purchase at an execution sale of intestate's property. After the change of the action, the court, on motion, struck out from the defendant's answer the set-off. At the trial, the defendant gave in evidence a transcript of a judgment of the Circuit Court of Jefferson county, state of Missouri, upon an appeal from a justice's court, in which it appears that William Boyd and Thomas Boyd were plaintiffs, and Archelaus Lee and Lewis H. Lee defendants. This transcript showed that the parties appeared and went to trial; there was a verdict and judgment; on this judgment an execution issued. The return of the execution shows the sale of a lot of mineral ashes, and the purchase thereof by Giles Lee. After the case was concluded, the court withdrew from the consideration of the jury the transcript of the record, on the motion of the plaintiff's counsel, because it did not purport to be the whole record in the cause.

Exceptions were taken to the various rulings of the court during the progress of the...