Meffert v. Lawson

• Decision Date: 11 October 1926
• Docket Number: 26975
• Citation: 287 S.W. 610,315 Mo. 1091
• Parties: Charles Meffert, Appellant, v. Martin E. Lawson, Executor of Last Will of Joseph F. Meffert
• Court: Missouri Supreme Court

287 S.W. 610

315 Mo. 1091

Charles Meffert, Appellant, v. Martin E. Lawson, Executor of Last Will of Joseph F. Meffert

No. 26975

Supreme Court of Missouri

October 11, 1926

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

George H. Kelly, William Buchholz, I. B. Kimbrell and Martin J. O'Donnell for appellant.

(1) The court erred in overruling plaintiff's motion for judgment on the verdict and notwithstanding same, for the reason that defendant tried the case on the theory that it was liable for the entire amount of the plaintiff's claims alleged in counts one and two thereof or for nothing, and since the jury found for plaintiff on all the issues, the court should have rendered judgment for the entire amount alleged in said counts. Manian v. Cavera, 19 Mo.App. 535; Henderson v. McPike, 35 Mo. 255; Pierce v Schaden, 62 Cal. 283; Black on Judgments, sec. 159; Brown v. Lawlor, 21 Minn. 327; Redmon v Weisman, 77 Cal. 423, 20 P. 544; Buffington v Henton, 126 P. 58; Kerschow v. Daggs, 207 P. 1089; Hodgkins v. Mead, 119 N.Y. 166; Dalrymple v. Williams, 63 N.Y. 361; Fornara v. Wolpe, 226 P. 203; Railway v. Oliver, 17 Okla. 589; Marsh v. Kendall, 65 Kan. 48; Lough v. Ry., 116 Iowa 31; Morris v. McLaughlin, 39 Col. 459; Schwitzer v. Connor, 57 Wis. 177; Schermes v. Welser, 169 Wis. 507; Wentworth v. King, 49 S.W. 696; Diven v. Diven, 115 Kan. 119. (2) The court erred in that it ruled that notwithstanding all the issues of fact arising in the case were determined by the verdict of the jury in plaintiff's favor, yet that Sec. 1423, R. S. 1919, justified the court in denying plaintiff the right to a judgment for the full amount shown by the instruments of writing to be due plaintiff, thus and thereby depriving plaintiff of his property and denying plaintiff the equal protection of the laws, in violation of Sec. 1, Art. XIV, of the Amendments to the United States Constitution. (3) The court erred in sustaining defendant's objection to plaintiff's competency to testify as a witness and to his offer of proof, notwithstanding it appeared of record that at a former trial plaintiff was sworn as a witness on his own behalf and gave testimony without objection and was cross-examined by defendant. Harris v. Ry., 115 Mo.App. 527; Sec. 5414, R. S. 1919; Norwell v. Cooper, 155 Mo.App. 445; Railway v. Silver, 56 Mo. 265. (4) The court erred in giving the instruction marked 3 at the request of defendant, for the reason that said instruction tended to lead the jury to believe that even if deceased was indebted to plaintiff for the amounts in controversy, yet the jury were not required to assess the amount of the indebtedness. (5) The court erred in rendering a judgment which failed to provide that the judgment should bear interest at the same rate as the notes sued on. Sec. 6493, R. S. 1919; Barber v. Borders, 81 Mo. 636.

Lathrop, Morrow, Fox & Moore and George W. Day for respondent.

(1) Appellant's motion for judgment notwithstanding the verdict is not well taken. Such a motion can only be sustained when it appears from the record that the allegations in the answer constitute no defense to the action. Hurt v. Ford, 142 Mo. 296; Dezell v. Fidelity & Cas. Co., 176 Mo. 282; Shearer v. Guardian Trust Co., 136 Mo.App. 229; King v. Wholesale Grocery Co., 188 Mo.App. 235. (2) The allowance of interest, the computation thereof and its inclusion in, or exclusion from, their verdict, is within the exclusive province of the jury in all actions for the recovery of money only. R. S. 1919, sec. 1423; Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Dyer v. Combs, 65 Mo.App. 150; Dawson v. Wombles, 111 Mo.App. 532; Connelly v. Railroad, 120 Mo.App. 652; Lederer v. Morrow, 132 Mo.App. 438. (3) The instructions given at the request of the appellant are binding upon him, whether they correctly declare the law or not. Scofield v. Land & Mining Co., 187 S.W. 61; Bradford v. McAdoo, 219 S.W. 94; Diehl v. Bestgen, 217 S.W. 556; Christian v. Life Ins. Co., 143 Mo. 460; Baker v. Railroad, 122 Mo. 595; Flowers v. Helm, 29 Mo. 324. (4) By his instructions numbered 1 and 2, appellant invited the jury to return a verdict for him for any sum not exceeding the amount of the principal and interest claimed by him to be due on the two disputed notes, and he cannot now complain. Kinlen v. St. Ry. Co., 216 Mo. 145; Schaefer v. Suburban Ry. Co., 128 Mo. 64.

OPINION

Walker, P. J.

This action had its origin in the Probate Court of Jackson County. The plaintiff filed a petition in that court asking an allowance against the estate of his brother, Joseph F. Meffert, on three promissory notes, claimed to have been made by the latter to the plaintiff, as follows: one for $ 2,900.50, one for $ 500, and one for $ 375.27; each of these notes bore interest at the rate of six per cent per annum, payable annually, and if not so paid the interest was to be compounded and become a part of the principal. Upon a hearing before a jury under the statute (Sec. 200, R. S. 1919), the demands were allowed. The executor appealed from this judgment to the circuit court, where the case was three times tried, resulting upon each trial in a judgment for the plaintiff. From the third judgment the executor appealed to this court, which reversed and remanded the case (Meffert v. Lawson, 289 Mo. 337). In that case the facts are set forth and discussed.

Upon the retrial of the case a verdict was rendered in favor of the plaintiff on each of the notes and a judgment entered thereon. November 14, 1924. The verdict on which the judgment was based was in the following form:

"We, the jury, find the issues for the plaintiff on the first count and do assess his damages at $ 2,900.50.

"We, the jury, find the issues for the plaintiff on the second count and do assess his damages at five hundred dollars.

"We, the jury, find the issues for the plaintiff on the third count and do assess his damages at $ 375.27."

On the 18th day of November, 1924, the plaintiff filed a motion in the circuit court for a judgment non obstante veredicto. On November 19, 1924, the plaintiff filed motions for a new trial and in arrest of judgment. The motion non obstante was continued from time to time until June 27, 1925, when it was overruled, and on the same day the court overruled the plaintiff's motions for a new trial and in arrest. The plaintiff thereupon appealed to this court.

Each count of the plaintiff's petition, while asking a judgment for the principal of the note, therein described, also asked a judgment for the interest due thereon, compounded as authorized by the terms of the notes. The plaintiff's contention is that under the terms of the contracts made manifest by these notes, the parties agreed to the amount of each of the same, and that the court should have sustained his motion non obstante and entered judgment for the amount of each of the notes and interest; and having failed so to do, that the Supreme Court should reverse the ruling of the circuit court and enter judgment for the full amount of the principal and interest of the notes. Numerous other assignments of error are made which will be considered in the order presented. Their determination does not require a statement of the testimony.

I. A motion for a judgment non obstante veredicto is an inheritance from the common law and despite our code it is not obsolete. [Shearer v. Trust Co., 136 Mo.App. 229.] Its filing, therefore, in a case authorizing the same is not regulated by the statutes in regard to motions for a new trial and in arrest of judgment, but by the rules of the common law. These rules, as is evident from the trend of authority are succinctly stated in Hurt v. Ford, 142 Mo. 283, as follows: The right to file the motion is limited to the plaintiff; it must be filed before the entry of judgment on the verdict and is only authorized when it appears from the record that the allegations of the answer constitute no defense to the action.

The verdict in the instant case was rendered on the 14th day of November, 1924, and judgment entered accordingly. Thereafter on the 18th day of November the plaintiff filed his motion for a judgment, notwithstanding the verdict. As was said in Mississippi v. Commercial Bank, 6 Smedes and Marshall, 218, cited with approval in Hurt v. Ford, 142 Mo. l. c. 297: "This came too late after judgment was entered. Like a motion in arrest of judgment, it must precede the entry of the judgment, it being too late to arrest that which is already entered. This objection is quite technical, yet it is in strict accordance with the law. The objection is made, and there seems to be but one rule on the subject, and that is, that such a motion must be made immediately after the verdict and before judgment is entered on the verdict."

Another reason, not technical in its nature but based on the nature and function of the motion, is its legal impropriety under the facts in this case. This is a proceeding under the statute for the allowance by the probate court of certain claims based on the notes referred to. No formal pleadings are required in such cases. On the part of the claimant a statement of the facts on which the claim is based sufficient to notify the executor of the nature of the claim, is all that is necessary, either in the probate court or on appeal. [Rassieur v. Zimmer, 249 Mo. 175; Christianson v. McDermott, 123 Mo.App. 448.] No pleading is required on the part of the executor (Sec. 197, R. S. 1919), and he may be said to tender the general issue (21 R. C. L. sec. 122, bot. p. 563), which amounts to a denial of every material allegation of fact in the demand (Sublette v. Nelson, 38 Mo. 487; Smith v. Collins, 243 S.W. (Mo. App.) 219). The statute dispensing with formal pleadings...