Moeckel v. Heim

• Decision Date: 15 June 1896
• Citation: 36 S.W. 226,134 Mo. 576
• Parties: MOECKEL v. HEIM et al.
• Court: Missouri Supreme Court

36 S.W. 226

134 Mo. 576

MOECKEL v. HEIM et al.

Supreme Court of Missouri.

June 15, 1896.

WITNESS — HUSBAND AND WIFE — FRAUD — RULINGS ON EVIDENCE — SAVING EXCEPTIONS.

1. Where a husband, in furtherance of the fraud of others, prevails upon his wife to sign a note and incumber her property, equity will, in the absence of other evidence, in order to expose the fraud in all its details, permit both husband and wife to testify as to the conversations had between them in regard to the transaction. Henry v. Sneed, 12 S. W. 663, 99 Mo. 407, followed.

2. Where the court withheld its ruling on the admissibility of certain testimony, and then, for the first time, in the decree excluded it, the only remedy of the party complaining was to move for a new trial, since he could not have excepted to the ruling before it was announced.

Barclay, J., dissenting.

In banc. Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Emilie Moeckel against Joseph J. Heim and others to cancel a note, and for other relief. Ther was a judgment for defendants, and plaintiff appealed to the Kansas City court of appeals, which transferred the case to the supreme court. Reversed.

W. C. Stewart and Kagy & Bremermann, for appellant. Warner, Dean & McLeod, for respondents.

SHERWOOD, J.

This cause has been transferred to this court by the Kansas city court of appeals. We adhere to the ruling announced in Henry v. Sneed, 99 Mo. 407, 12 S. W. 663, that where a husband is made the conduit and mouthpiece of the fraud of others, and, in furtherance of that fraud, prevails upon his wife to sign a note and incumber her property, there a court of equity, in the absence of other evidence, in order to unearth that fraud, and to expose it in all of its details, will, ex necessitate rei, and upon a familiar common-law principle respecting evidence of fraud, permit both husband and wife to testify as to the conversations had between them in regard to the transaction. In this case the judge of the lower court heard the testimony aforesaid, saying he would pass upon its admissibility at the conclusion of the case. But he did not do so. On the contrary, he made no ruling on the admissibility of the evidence until he set forth his findings of fact in the decree he rendered in favor of defendants, when he, for the first time, excluded all evidence of conversations between plaintiff and her husband. Plaintiff, in her motion for new trial, called attention to this point, and,...