Moberly v. Powell

• Decision Date: 07 October 1935
• Parties: O. H. MOBERLY, COMMISSIONER OF FINANCE OF THE STATE OF MISSOURI IN CHARGE OF THE AFFAIRS OF PARMA BANK OF PARMA, MISSOURI, PLAINTIFF, v. CHARLES POWELL AND W. W. WALKER, ADMINISTRATOR OF THE ESTATE OF GUSTAV SCHOELLER, DECEASED, DEFENDANTS. CHARLES POWELL, RESPONDENT, v. W. W. WALKER, ADMINISTRATOR, APPELLANT
• Court: Missouri Court of Appeals

86 S.W.2d 383

229 Mo.App. 857

O. H. MOBERLY, COMMISSIONER OF FINANCE OF THE STATE OF MISSOURI IN CHARGE OF THE AFFAIRS OF PARMA BANK OF PARMA, MISSOURI, PLAINTIFF, v. CHARLES POWELL AND W. W. WALKER, ADMINISTRATOR OF THE ESTATE OF GUSTAV SCHOELLER, DECEASED, DEFENDANTS. CHARLES POWELL, RESPONDENT, v. W. W. WALKER, ADMINISTRATOR, APPELLANT

Court of Appeals of Missouri, Springfield

October 7, 1935

Appeal from the Circuit Court of Dunklin County.--Hon. J. V Billings, Judge.

AFFIRMED.

Judgment affirmed.

Wammack & Cooper for appellant.

In appeal from judgment in probate court in insanity hearing the appellant must give bond and unless he does so, the cause should be dismissed in the circuit court when that fact is made to appear. Green v. Castello, 35 Mo.App. 127; Bank of Monett v. Moulder, 53 Mo.App. 535; Thurman v. Smith, 39 S.W.2d 336. It is necessary to give an appeal bond in any case to stay the proceedings, and the giving of an appeal bond is held to be mandatory. State ex rel. v. Hennings, 194 Mo.App. 545; Corbin v. Lasswell, 48 Mo.App. 626. The contract of a person who had been adjudged to be of unsound mind and incapable of managing his affairs under the statute and for whom the probate court has appointed a guardian is invalid in this State. Section 486, R. S. 1929; Kiehne v Wessell, 53 Mo.App. 667. "No one can claim compensation for doing that which he was plainly bound in law to do." Swaggard v. Hancock, 25 Mo.App. l. c. 606; Peck v. Harris, 57 Mo.App. 467. When a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefor, and although by taking advantage of the necessities of his adversary he obtained a promise for more, the law will regard it as undum pactum and will not lend its process to aid the wrong. Wear Brothers v. Schmelzer, 92 Mo.App. l. c. 323; Storck v. Mesker, 55 Mo.App. 26.

Sharp & Baynes for respondent.

An appeal lies from a finding of a probate court adjudging a party insane. R. S. Mo. 1929, sec. 285; Wells v. Tannory, 2 S.W.2d 189. An appeal from the probate court to the circuit court vacates the judgment of the lower court and the case stands for trial de novo in the circuit court. Mo. P. R. R. v. Atkinson, 17 Mo.App. l. c. 496; Ex parte Smith, 197 Mo.App. 200, 193 S.W. 288. When an appeal is taken the trial court loses jurisdiction of the case. Kansas City v. Jones Store, 28 S.W.2d 1008; 325 Mo. 226; Martin v. Peveley, 17 S.W.2d 567. The filing of the proper affidavit for appeal and transmission of the papers to the circuit court vested that court with jurisdiction of the lunacy proceedings. R. S. Mo. 1929, sec. 292; Lewellyn v. Lewellyn, 87 Mo.App. 9. The statute has been changed so that now no appeal shall be dismissed in the circuit court because of "failure to file affidavit or bond." R. S. Mo. 1929, sec. 290. And such omission is waived if not properly objected to. In other words opportunity must be given to supply same. Egger v. Egger, 225 Mo. 116, 123 S.W. 928. Proceedings to have a party declared insane, abate upon his death. 32 C. J. 635, and cases cited; Ruiz v. Pons, 141 La. 110. An adjudication of insanity is merely prima facia and not conclusive against persons not parties thereto. 14 R. C. L. 621, par. 73, and cases cited. If the controversy involves a personal right, the death of the party generally abates the action. Town of Carrolton v. Rhomberg, 78 Mo. 547, 62 A. L. R. 1055. And it has been directly held that delivery by bill of sale is complete constructive delivery. In re: Fenton, 182 Ia. 346, 165 N.W. 463.

SMITH, J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This is an action of interplea filed in the Circuit Court of Stoddard County, by O. H. Moberly in charge of the closed bank of Parma, wherein he alleges that he has in his possession $ 500 in Fourth Liberty United States Bonds, belonging to Gustav Schoeller, deceased, and that defendant, C. D. Powell, claims to own said bonds by reason of a bill of sale executed by Gustav Schoeller in his life-time and on the 5th day of September, 1932, and that W. W. Walker, administrator of the estate of said Gustav Schoeller, deceased, claims title to said bonds as the administrator of the estate of the said Gustav Schoeller, deceased.

Thereafter, and at the December term, 1933, of the Circuit Court of Stoddard County, defendant, C. D. Powell, filed his application and affidavit for a change of venue in said cause, which was granted, and the said cause was transferred to the Circuit Court of Dunklin County for trial.

Defendant, Powell, duly filed his answer in said cause claiming the ownership of said bonds by reason of the bill of sale executed by the said Gustav Schoeller on the 5th day of September, 1932.

Defendant, Walker, appeared and filed his answer claiming the right to said bonds by reason of the fact that the said Gustav Schoeller was on the 20th day of June, 1932, found to be a person of unsound mind and incapable of managing his affairs by the Probate Court of Stoddard County, and the said W. W. Walker was by said court appointed guardian and curator of said Gustav Schoeller, and that after the death of the said Gustav Schoeller, which occurred on the 19th day of May, 1933, the said W. W. Walker was duly appointed the administrator of the estate of the said Gustav Schoeller by the Probate Court of Stoddard County.

On the 23rd day of February, 1934, the said cause was tried in the Circuit Court of Dunklin County, and that court on the 14th day of March, 1934, rendered its judgment and decision therein in favor of defendant, W. W. Walker.

On the 14th day of March, 1934, the defendant, W. W. Walker, filed his motion for new trial in said cause, which was by the court overruled, and on the same day, the said W. W. Walker filed his affidavit for an appeal herein, which was granted to this court.

The testimony showed that on the 15th day of June, 1932, the Prosecuting Attorney of Stoddard County filed his statement in the probate court, charging Gustav Schoeller to be of unsound mind; that citation was issued and the trial had on the 20th day of June before a jury which rendered a verdict finding that Gustav Schoeller was a person of unsound mind, from which judgment on the same day Schoeller filed his application for an appeal to the Circuit Court of Stoddard County which was granted. The order of the court required an appeal bond in the sum of five hundred ($ 500) dollars to be secured by a deposit of the bonds now in question with W. W. Walker, who had been by the court, appointed guardian. The papers were by the probate court duly transmitted to the Circuit Court of Stoddard County, where they were duly filed and thereafter an application for change of venue was filed by Schoeller which being sustained, the cause was transmitted to the Circuit Court of Pemiscot County. The case was never heard in Pemiscot county and on May 19, 1933, approximately a year after the case first reached the circuit court, Schoeller died and Walker who had been previously appointed guardian was by the same court, appointed administrator of his estate. In July, 1934, according to appellant's statement, W. W. Walker as administrator filed a motion in the Circuit Court of Pemiscot County to dismiss the appeal for the alleged reason that no bond had been given in the case and upon hearing of this motion to dismiss it was by that court sustained. On the part of the defendant, the evidence showed that Powell, respondent, had been living on the farm belonging to Schoeller for approximately eleven (11) years; that for several years he had paid rent but on June 11, 1932, Schoeller had made him a deed to the farm. The testimony also showed that Powell and his wife had been taking care of Schoeller, who was crippled with rheumatism and that they did this up until his death; that Schoeller did not live in the same house with Powell but in a small house to himself in the orchard where he said he wanted to live and die. With particular reference to the bonds in question the testimony was that on the 5th day of September, 1932, Schoeller executed a bill of sale of the particular liberty bonds now in question, to Powell. The bonds themselves being at that time deposited for safe keeping in the Parma bank. Justice of the Peace Leavett, who was called in to draw up the bill of sale said that it was in his handwriting that Mr. Schoeller signed it and he, the Justice acknowledged it; that after the execution it was delivered to Powell by Schoeller.

Upon this statement of facts the court found that the bonds were the property of respondent, Powell and ordered them delivered to him, from which judgment, Walker has brought the case to this court.

The case is presented by appellant Walker to us under two points, which we quote as follows:

"First: Did the appeal of Gustav Schoeller from the judgment of the probate court have the effect of superseding or suspending that judgment until a trial could be had anew in the Circuit Court of Stoddard County? We take the position that it did not because there was no bond given to support the affidavit for appeal."

"Second: Was there any consideration for the bill of sale for the $ 500 in bonds? We do not think there was for the identical consideration is mentioned in the bill of sale that is mentioned in the deed conveying the eighty acres of land to Mr. and Mrs. Powell."

W. W Walker contends here that since the testimony shows that Mr. Schoeller had been declared an incompetent person before he executed the bill of sale transferring the bonds to Powell, the bill of sale was a nullity and void. Powell contends that when the appeal was taken to the circuit court from the probate court wherein Schoeller was declared to be...