Mabary v. McClurg

• Decision Date: 31 October 1881
• Citation: 74 Mo. 575
• Parties: MABARY v. MCCLURG et al., Appellants.
• Court: Missouri Supreme Court

74 Mo. 575

MABARY

v.MCCLURG et al., Appellants.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Hickory Circuit Court.--HON. R. W. FYAN, Judge.

AFFIRMED.

This was a suit brought by the heirs of John Mabary, deceased, against Joseph W. McClurg, Marshall W. Johnson and E. B. Torbert, to set aside an allowance of $10,925 made by the county court of Hickory county sitting in probate, in 1865, in favor of E. B. Torbert & Co., a firm composed of the above named defendants, and against the estate of said Mabary, and to set aside and annul certain sales of real estate made to said McClurg under the orders of said court to pay said allowance. The claim allowed was for goods alleged to have been taken from the store of Torbert & Co. at Linn Creek in October, 1861, by a company of men known as the Mabary company, then supposed to have been acting under the orders of John Mabary. Upon the trial of the present case it was shown that the Mabary company was a company of Confederate soldiers, organized in Hickory county in May, 1861, by John Mabary; that he was captain of the company until August, 1861, when he resigned and his connection with the company ceased; that Charles Howard became captain in his place; that in the month of October, 1861, the company, with Howard in command, went to Linn Creek and took from the store of Torbert & Co. goods, consisting mainly of material for shirting and for uniforms, boots and shoes, gloves and hats, for which a quarter-master's receipt was given; that Mabary was not present and had no hand in taking the goods, and was in no way privy to it.

A mass of evidence was offered tending to show that the allowance was obtained either through fraud and collusion between Torbert & Co. and Jas. R. Wilson, at that time public administrator of Hickory county, and as such in charge of the Mabary estate, or else through intimidation practiced by Torbert & Co. upon Wilson. Issues were framed and submitted to a jury upon both these points. The jury found that there was no intimidation, but there was fraud, and the court adopting the finding, made a decree setting aside the allowance and all the sales and conveyances made by the administrator. The evidence bearing upon the question of fraud is here given at length:

Geo. W. Rains, one of the plaintiffs and son-in-law of John Mabary, deceased, testified: I was present when the claim of Torbert & Co. for $10,925 was allowed. Wilson, the public administrator, who was in charge of the estate of Mabary, had no counsel. Torbert & Co. had Mr. Sherwood. I heard part or all of the account presented read. It was for goods taken in 1861; goods were alleged to have been taken some time in August, 1861, in the account. It may have been later than August. Witnesses who testified were one Lieutenant Gray and Wm. Flesher. Gray testified that he was clerk in the firm of Torbert & Co. I was also a witness. I heard all the testimony on the trial of the cause. No one testified that Mabary was present at the time the goods were taken. I was at Linn Creek when the goods were taken. I was called as a witness in the county court. I testified. I did not know much. I was stopped in my testimony by Mr. Sherwood and was allowed to testify no more. Flesher testified that he found a sack or two of salt, a part of a keg of nails, a bolt or two of domestic. I had seen the salt and nails before myself. Flesher testified first I think. I knew where Mabary got the salt and nails. I think I was with him when he got the salt. I think he got it in Hermitage. I was going to testify to that fact when I was stopped. Wilson made no objections at all; did not ask me any questions at all; made no objections to Flesher testifying. I cannot tell whether Wilson had any witness subpœnaed or not. He introduced no witnesses that I know of. He did not object to any being stopped, or remonstrate or insist on my giving my testimony. He asked Kidwell one question, and that was if he knew that to have been a rebel company that had him prisoner, and Kidwell said that was what they called it. Sherwood had previously asked Kidwell something about the Mabary company. Kidwell had said something about this company having had him a prisoner, and I inferred from his testimony that he had been a federal officer. The only witnesses who testified on the trial were myself, Flesher, Gray and Kidwell. We were introduced by Torbert & Co. I could not say that Mabary was not present at the time the goods were taken. The trial lasted two hours, or an hour and a half. Sherwood alone argued the case, and only argued a few minutes. Before the trial I told Wilson I wanted him to defend the case if he spent the estate at it. I do not know all that Gray testified to. I remember the question was asked Gray, who was in the command of the company that took the goods, and his answer was, it was a man by the name of Howard. Gray swore to something about that he did not know Mabary, but was told it was Mabary's company.

Cross-examined, this witness further said: I was subpœnaed by Torbert & Co. I suppose I heard all the testimony of Gray. He stated that he was at Linn Creek when the goods were taken, and that some one stated that it was the Mabary company. I do not remember that Gray stated that Mabary was up in the upper town. Gray also stated that a portion of the goods taken were of the class of goods charged for in the account. Don't remember about Flesher testifying to any goods found, only about some goods afterward found up stairs in Mabary's house, and that these goods were found about two weeks after the goods were taken at Linn Creek. There was something asked me about some kind of dark check cloth; I told them I had seen some of the Mabary boys wear such cloth, and some others, between August and December, 1861. I was home the biggest part of the time in the fall of 1861. I do not know of the defendants Johnson, McClurg or Torbert being here in town on the day of trial. If they were, I did not know it. I did not talk much with Wilson. The language I used to him was, I told him that I had been told to tell him for him to defend the suit if it took it all, and he said he thought it of but little use. I think Sherwood asked me about some certain goods I mentioned while ago. Yes, he asked me some other questions about goods, and something was said about what Flesher had testified to; asked me whether I had seen such goods as Flesher testified to, and I said I did, and he asked me where they came from, and I was going to tell and Sherwood stopped me. I cannot tell the sentence he stopped me at. I am certain he stopped me on the sentence I was going to tell. I am not certain he stopped me from answering the question. I can't say that I can remember much as to what Kidwell testified to, only that he was captured by the Mabary company. I can't say that Sherwood knew what I was going to testify to, when he stopped me. I believe he stopped me in answering the question he had asked. Wilson did not say anything about appealing the case to the circuit court.

Charles Kroff, a witness for plaintiff, testified that the order of sale of the Hickory county court was in part in the handwriting of Mr. Sherwood, and in part in the handwriting of M. W. Johnson, a member of the firm of Torbert & Co.; that Wilson's report of sale and affidavit thereto were altogether in Johnson's handwriting; that the affidavit of the appraisers of Mabary's real estate was in Sherwood's handwriting; that witness was himself one of the appraisers, and at the same time was attorney for Johnson and McClurg, employed by the year, but the Mabary case was excepted from the employment; that the apprais ers made the appraisement without going on or near the-land. Witness then testified as to certain other probate papers in the case that they were in the handwriting of Sherwood, Johnson and himself, and proceeded: Wilson told me about what was testified to before the probate court, in 1865, about the goods being taken by Mabary's company. I said it was inadmissible. He said he was no lawyer. He told me there was no evidence in the court below that Mabary was there at the time the goods were taken. He said the lieutenant of the company said the goods were taken by order of Captain Mabary. I told Wilson the evidence should not have been admitted unless a conspiracy was shown between Mabary and the lieutenant. I spoke to Wilson about setting the judgment aside. He replied that he did not think it could be done, that it was just and ought to stand. In the fall of 1867 a motion was made by Kenton for the Mabary heirs to have the judgment set aside. I do not know that Wilson opposed the motion. At the hearing of the motion Kenton appeared for the heirs, and not the administrator. About the time of the hearing of the motion Wilson expressed himself in favor of having the judgment stand and against having it set aside. The merits of this motion were never tried; dismissed for want of service. I don't know who requested me to act as appraiser in the case. It was before the motion was filed by Kenton to set aside the judgment that I had the conversation with Wilson.

On cross-examination the witness testified: Col. Johnson has had charge of the management of this case for the firm. McClurg was here once at court about two years ago. I was pretty well acquainted with all the lands described in this appraisement. I don't think any one was present when we appraised them. Wilson, the administrator, presented to me the affidavit of appraisement and the list of lands and the certificate made out, and we put in the amount. The appraisement, I think, was made in my office, or it may have been made in the probate office. We fixed the amount at which the land was appraised on our own judgment. Don't think Col. Johnson or the administrator were present when the appraisement was made. The report of sale, 1869, is partly in my handwriting. I went to Dallas county for the...