Link v. Hathway

• Decision Date: 04 April 1910
• Parties: LINK v. HATHWAY.
• Court: Missouri Court of Appeals

127 S.W. 913

143 Mo. App. 502

LINK v. HATHWAY.

Springfield Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 3, 1910.

1. APPEAL AND ERROR (§ 99) — JUDGMENTS APPEALABLE—ATTACHMENT—JUDGMENT SUSTAINING PLEA IN ABATEMENT.

Rev. St. 1899, § 407 (Ann. St. 1906, p. 497), provides that if the issue on defendant's plea in abatement in attachment is found for plaintiff, and a new trial is denied, judgment shall be rendered sustaining the attachment, and defendant may file his bill of exceptions, which shall not be waived by answering to the merits, and the cause shall proceed for trial upon the merits, and if the finding on the issue of abatement is for defendant, judgment of abatement shall be rendered, and plaintiff may file exceptions, and the cause shall proceed to trial upon the merits, and upon such trial either party may appeal; plaintiff from the finding on the abatement plea or on the merits, or both, and defendant upon the whole case, if at all. Held, that the exceptions taken to the ruling on the plea in abatement should be included in the final bill of exceptions, so that no appeal lies from a judgment sustaining a plea in abatement.

2. EXCEPTIONS, BILL OF (§ 57) — FILING — PLACE.

Where a change of venue is had on the merits in attachment after a ruling therein sustaining a plea in abatement, the proper practice is to have a bill of exceptions to the court's action in abatement proceedings approved by the judge therein and forward it with the transcript to the court to which the case is transferred, or if the bill is filed after the transcript is forwarded, incorporate it in the final bill of exceptions.

3. TRIAL (§ 139)—JURY QUESTION—SUFFICIENCY OF EVIDENCE.

Where testimony on an issue is so vague that an inference therefrom would be mere conjecture, so that a verdict on such issue would have to be set aside, the question should not be submitted to the jury, as a verdict founded upon conjecture, however reasonable, cannot stand.

4. ATTACHMENT (§ 47)—GROUNDS—CONCEALING PROPERTY.

That a debtor has not paid a debt, or has offered to sell his property, is not sufficient to justify a finding that he is about to fraudulently conceal or dispose of his property and hinder creditors, so as to justify an attachment.

5. FRAUDULENT CONVEYANCES (§ 61) — INSOLVENCY —EFFECT.

It cannot be inferred that a conveyance was fraudulent from the fact the grantor was involvent or financially embarrassed when he executed it.

6. ATTACHMENT (§ 47)—GROUNDS—REMOVAL OF PROPERTY FROM STATE—SUFFICIENCY OF EVIDENCE.

A declaration by defendant that he and others purchased a tract in another state, but did not expect to remove his family from his present home, was not sufficient to authorize attachment on the ground that he was about to remove his property from the state and change his domicile, with intent to defraud his creditors, etc.

7. APPEAL AND ERROR (§ 554)—BILL OF EXCEPTIONS —EFFECT OF ABSENCE.

Where no bill of exceptions was filed during the term at which an order of reference was made, or until a subsequent term, error in referring certain issues cannot be reviewed, since a bill of exceptions should have been filed at the term the order was made, and embodied in the final bill of exceptions.

8. APPEAL AND ERROR (§ 967)—REVIEW—DISCRETION OF COURT—REFERENCE.

Where it is admitted that some of the counts in the petition and counterclaim were properly referred to a referee, the reference of other counts along with such counts is a matter of discretion, which is not reviewable unless such discretion is clearly abused.

9. APPEAL AND ERROR (§ 1020)—FINDINGS— CONCLUSIVENESS—REPORT OF REFEREE.

A referee's report is treated as a special verdict, and will not be reviewed, unless it is not supported by substantial evidence, so that a contention that a referee's fact findings were against the preponderance of the evidence will not be considered on appeal.

10. REFERENCE (§ 99)—FINDINGS—REVIEW BY TRIAL COURT.

It is the trial court's duty to review fact findings of a referee.

11. APPEAL AND ERROR (§ 1022)—REVIEW— FINDINGS—FINDINGS OF REFEREE—CONCLUSIVENESS.

Where the evidence on the issue of negligence was conflicting and the referee's finding thereon was approved by the trial court, such finding will not be reviewed.

12. BAILMENT (§ 11)—LANDLORD AND TENANT (§ 55) — DESTRUCTION OF PROPERTY — DESTRUCTION BY ELEMENTS—LIABILITY.

As a rule, if property in the possession of a bailee or tenant is destroyed by fire, floods, etc., without his negligence, he is not liable to the owner, though the contract or lease contains an agreement to return in good condition.

13. BAILMENT (§ 11)—LANDLORD AND TENANT (§ 55)—DESTRUCTION OF PROPERTY—LIABILITY.

Whether a bailee or tenant is liable for the value of property accidentally destroyed in his possession depends upon the interpretation of the particular contract.

14. EVIDENCE (§ 450)—PAROL EVIDENCE—EXPLAINING AMBIGUITIES—LEASE.

A lease of a sawmill, which provided that the lessee should furnish repairs, ordinary wear and tear excepted, is so vague and indefinite as to authorize the admission of parol evidence as to the circumstances under which the lease was made, to show the lessee's liability for the return of the property in good condition.

15. APPEAL AND ERROR (§ 931)—REVIEW — PRESUMPTIONS.

Where the trial court set aside the findings and conclusions of the referee as to the lessee's liability under a lease, it will be presumed on appeal that it examined the testimony, and differed from the referee as to the terms of the agreement.

16. APPEAL AND ERROR (§ 1010)—FINDINGS— CONCLUSIVENESS.

Where the trial court's finding is supported by substantial evidence, it will not be disturbed on appeal.

17. COSTS (§ 61) — PARTY SUCCESSFUL IN PART.

Where, in an action in which the petition contained nine counts and the counterclaim five counts, much of the referee's time was devoted to taking testimony on the causes of action contained in counts upon which final judgment was for defendant, defendant should not be taxed with all the costs incurred in trying the issues raised by such counts; Rev. St. 1899, § 694 (Ann. St. 1906, p. 703), providing that, where separate causes of action are united, separate costs shall be awarded against the unsuccessful party, unless it is ordered otherwise for good cause.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Lewis Link against W. W. Hathway. From the judgment both parties appeal. Affirmed as to plaintiff's appeal, and reversed and rendered, with directions for retaxation of costs, as to defendant's appeal.

O. L. Haydon and W. P. Campbell, for appellant. Lewis Luster, for respondent.

GRAY, J.

On November 7, 1906, the plaintiff commenced suit against the defendant in the circuit court of Howell county, by filing a petition containing nine counts. The answer of the defendant was a denial of the different counts in plaintiff's petition, and with five counterclaims set forth in his answer. When the suit was commenced, an attachment writ was sued out in aid thereof by the plaintiff, and certain property of the defendant seized. In due time the defendant filed his plea in abatement to the attachment, and a trial was had on the issues thus made before a jury in the Howell county circuit court, March term, 1907, and at the conclusion of the plaintiff's evidence, the court instructed the jury to find the issues for defendant, and a verdict was rendered in accordance therewith. Motion for new trial was filed in statutory time, and a hearing on the same was continued to the July term, 1907, when the motion was taken up and overruled. Whereupon, and on the same day the plaintiff filed his bill of exceptions and an affidavit for an appeal from the judgment of the court overruling his motion for new trial on the plea in abatement. Afterwards and on the same day the plaintiff applied for and obtained a change of venue on the merits of the cause to the Greene county circuit court. On November 14, 1907, the circuit court of Greene county appointed Hon. George W. Goad, referee to hear and determine all the issues in the case. The referee heard the evidence and reported to the court. From the judgment as finally rendered on the referee's report, both parties appealed.

The respondent, Hathway, has filed in this court motions to dismiss the appeal on the attachment proceedings, as well as on the proceedings on the merits, and to those motions the other party has replied, and has filed supplemental abstracts. The appeals were taken originally to the St. Louis Court of Appeals, and after the cases were transferred here by an order of that court, the supplemental abstracts were filed, as required by the rules of this court, more than 30 days before the cause was set for trial in this court. We have examined the abstracts and motions relating thereto, and have come to the conclusion that the motions at the time they were filed were well taken, but since that time, and within the time allowed by the rules of this court, corrected and supplemental abstracts have been filed, and the motions, so far as they relate to insufficient abstracts, will be overruled. The proceedings in the case, as shown by the record, are out of the ordinary. We have two complete abstracts and bills of exceptions. One abstract is on the attachment proceedings, and comes from the Howell county circuit court, and the other shows the proceedings on the merits, and comes from the Greene county circuit court. When the circuit court of Howell county denied plaintiff a new trial on his plea in abatement, bill of exceptions was filed and an affidavit for an appeal, to take effect when the cause had been tried on the merits. The statute governing attachment proceedings permits of no appeal from a judgment of the court sustaining the plea in abatement. Section 407, Rev. St. 1899 (Ann. St. 1906, p. 497); Harris v. Letner, 101 Mo. App. 689, 74 S. W. 1116.

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