McCullough v. De Witt

• Decision Date: 11 June 1901
• Citation: 163 Mo. 306,63 S.W. 694
• Court: Missouri Supreme Court
• Parties: McCULLOUGH v. DE WITT.

63 S.W. 694

163 Mo. 306

McCULLOUGH v. DE WITT.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

APPEAL — AFFIRMANCE — INSUFFICIENT RECORD.

1. A judgment on the report of a referee will be affirmed where there are omitted from appellant's abstract and bill of exceptions books of accounts and other documentary evidence

which the bill of exceptions shows were before the referee.

2. Where, in a suit for a partnership accounting, the books kept by defendant showed sums of money remaining charged on the books, which defendant admitted had been paid to him, and which he never credited, and he also asserted that he had put certain sums of money into the concern, but without giving dates or amounts thereof, and the aggregate of which he was unable to estimate, a judgment on the accounting will not be reversed on defendant's appeal.

Appeal from circuit court, Sullivan county; W. W. Rucker, Judge.

Action by Warren McCullough, administrator of the estate of Knight & McCullough, against Henry S. De Witt, administrator of the estate of Thomas H. Booth. Judgment for defendant, and he appeals. Affirmed.

D. M. Wilson and Hall & Hall, for appellant. J. M. Winters and Perry S. Rader, for respondent.

SHERWOOD, J.

This suit was brought for an accounting. The matters in issue were committed to a referee, who heard testimony and made a report to the court. The referee, having heard all the evidence, made a careful and elaborate report, in which he found a balance due defendant of $78.74, to which adding interest at the rate of 6 per cent., it amounted to the sum of $83.11. This report was approved by the trial court, and the exceptions thereto overruled, and judgment entered accordingly. Looking over the evidence, together with the report of the referee, no reason is seen to doubt the correctness of that report. Presumptively, such reports possess the quality of correctness; and, even if there were some doubt as to the correctness of the referee's findings, still the inclination of this court would be to uphold the report, inasmuch as the referee had an advantage we do not possess, — that of observing the manner and demeanor of the witnesses when on the stand.

In addition to the considerations just mentioned is the fact that there are omitted from defendant's abstract and bill of exceptions books of account and other documentary evidence which the bill of exceptions shows were before the referee, and on which his findings were based. This point of itself...