Lueckenhoff v. Wuelling, 19009.
Court | Court of Appeal of Missouri (US) |
Citation | 112 S.W.2d 357 |
Decision Date | 10 January 1938 |
Docket Number | No. 19009.,19009. |
Parties | LUECKENHOFF, Public Administrator, v. WUELLING et al. |
Appeal from Circuit Court, Osage County; R. A. Breuer, Judge.
"Not to be published in State Reports."
Action on a promissory note by H. M. Lueckenhoff, public administrator in charge of the estate of Edward Gaume, deceased, against George Wuelling and others. Judgment for plaintiff, and defendants appeal.
Reversed and remanded.
H. BalkenBush, of Linn, for appellants.
J. H. Mosby and John P. Peters, both of Linn, J. R. Garstang, of Chamois, Marion R. Garstang, of Linn, and Leslie B. Hutchison, of Vienna, for respondent.
This is an action on a promissory note wherein, in a trial before jury, verdict was for plaintiff for the face of the note, together with interest, and also for attorney fees provided for in the note.
Judgment was entered for plaintiff in conformity with the jury verdict, and defendants have appealed.
To conform to position in trial court, we will continue to refer to appellants as defendants, and respondent as plaintiff.
Owing to the condition of the record filed in the court, there are presented almost unsurmountable difficulties.
The abstract of the record gives the pleadings upon the part of plaintiff and defendants, the verdict, the judgment, motion for new trial, recites that motion for new trial was filed, and recites that an appeal was perfected.
The bill of exceptions in the record appears in a very abridged form and, judged from the briefs filed in the case, the record is silent as to matters whereof error is claimed. Further, much of the evidence is in narrative form wherein the rule of this court is violated in that the narration of the evidence is not given in the language of the witness. The narration is, in effect, the conclusions of the narrator as to what was sworn to by the witness.
As gleaned from the record and briefs filed in the case, we deem it advisable to, as best we can, make a statement of facts and issues as presented in the trial of the case.
It will be noted that some of the facts stated by us are not found in the abstract, but are taken from briefs. However, our statement is not intended as binding either party by what the other party states in his brief and not found in the record. Our statement is for the purpose of better explaining our conclusions as to the course followed by this court in review and disposition of the case.
We glean from the brief filed by plaintiff, respondent herein, that one Edward Gaume died in 1932, in Osage county, testate, and that his widow was appointed executrix. We glean from the same source that the will of Gaume was contested, and that pending the contest, which was afterward determined by the Supreme Court upholding the will, one P. J. Paulsmeyer, stated by plaintiff in his brief as the cashier of the Peoples Bank of Chamois, was appointed administrator ad litem pending the contest. Concerning the said Paulsmeyer, plaintiff's statement says: "* * * P. J. Paulsmeyer committed suicide, and the evidence, by inference at least, shows that prior to Paulsmeyer's death the Peoples Bank of Chamois, of which he was cashier, failed."
The following is shown in the bill of exceptions filed herein:
The suit on above note was instituted by filing of petition by said Lueckenhoff, public administrator aforesaid. The petition, after reciting averment as to appointment and qualifying as administrator in charge of the estate of Edward Gaume, deceased, declared, in part, as follows:
All defendants answer by general denial.
Henry Wuelling, further answering, states:
George Wuelling, further answering, states: "That the note sued upon was given by George and Louise Wuelling without any consideration."
Plaintiff replies by general denial, as to allegations set up in each of defendants' answers.
The principal contention of defendants in this case is based upon the claim that the plaintiff has not produced sufficient proof to establish the alleged fact that the Peoples Bank of Chamois had by proper indorsement duly sold and transferred for value, to the estate of Gaume, so as to establish that plaintiff was holder of the note in due course.
On the question of ownership of note by the Gaume estate, the following from the probate records of Osage county, Mo., is shown, to-wit:
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Wolf v. Wuelling
...and defendant appealed. The judgment had at former trial was reversed and cause remanded. Our opinion or former review is reported in 112 S.W.2d 357. was had in the Circuit Court of Osage County, Missouri, in June, 1938. The trial was before a jury resulting in a verdict for defendants. Jud......
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...l. c. 358. (5) A finding of fact by the trial court is conclusive on appeal when the evidence is not set out in the record. Lueckenhoff v. Wuelling, 112 S.W.2d 357. (6) A who prevailed in the trial court is entitled to have full effect of the testimony favorable to his judgment considered o......
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