Mott v. Bernard

• Court: Missouri Court of Appeals
• Writing for the Court: GOODE, J.
• Citation: Mott v. Bernard, 70 S.W. 1093, 97 Mo. App. 265 (Mo. App. 1902)
• Decision Date: 09 December 1902
• Parties: FREDERICK W. MOTT et al., Appellants, v. TAYLOR BERNARD, Administrator of JAMES N. MACKIE, Deceased, et al., Respondents

70 S.W. 1093

97 Mo.App. 265

FREDERICK W. MOTT et al., Appellants, v. TAYLOR BERNARD, Administrator of JAMES N. MACKIE, Deceased, et al., Respondents

Court of Appeals of Missouri, St. Louis

December 9, 1902

Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.

AFFIRMED.

Judgment affirmed.

J. L Hornsby for appellants.

(1) The testimony of witnesses Taylor and Grant as to the alleged contract or agreement under which the suit in question was instituted by Mackie, is incompetent; these witnesses are parties to the contract or agreement jointly with Mackie, now dead, and both are interested in the result of the litigation. R. S. 1899, sec. 4652; Tierman v. Meier, 90 Mo. 433; Bank v. Hunt, 25 Mo.App. 170; Rice v. McFarland, 41 Mo.App. 489; Biebers v Boeckman, 70 Mo.App. 506. (2) Mackie having, on July 12 1898, transferred by written assignment his alleged claim against Mott and Sauer to Dr. Grant, had no right or title to this claim at the time he instituted the suit against Mott and Sauer, on December 31, 1898, and the fact that he was therefore not the real party in interest in said cause constituted a valid legal defense, which, if shown, would have defeated his suit. R. S. 1899, sec. 540; American Spelter Co. v. Ins. Co., 71 Mo.App. 658; Renfro v. Prior, 25 Mo.App. 402-406; Long v. Heinrichs, 46 Mo. 603.

Seneca N. & S. C. Taylor and Charles Erd for respondents.

(1) The doctrine is settled that a judgment at law will not be enjoined unless its execution would be against equity and good conscience. George v. Tutt, 36 Mo. 141; Davis v. Staples, 45 Mo. 567; Sauer v. City of Kansas, 69 Mo. 48; Wilhite v. Ferry, 66 Mo.App. 433; Herwick v. Barber Supply Co., 61 Mo. 456; Bank v. Gilpen, 105 Mo. 22; Smith v. Sims, 77 Mo. 273. (2) Under the statute, the interest of a witness alone does not exclude him where the other party is dead. The statute is an enabling not a disabling act. Disqualification obtains only where the witness and the deceased are both parties to the contract or cause of action, and where the establishment of the contract opposes some interest of the estate of the deceased. Priest v. Chouteau, 12 Mo.App. 252; Fink v. Hay, 42 Mo.App. 292; State ex rel. v. Flynn, 66 Mo.App. 373; Looker v. Davis, 47 Mo. 140; Coughlin v. Haeussler, 50 Mo. 126; Bates v. Forcht, 89 Mo. 127. (3) Even if it were true (but it is not proven in this case) that Mackie made an assignment of his entire claim, in the summer of 1898, to Grant, yet Grant turned the claim back orally and refused to accept it, thereby vesting in Mackie the right to sue upon the claim. Hansler v. Dawson, 28 Mo.App. 536; Van Court v. Nelson, 60 Mo.App. 523; Cable v. Dock Co., 12 Mo. 133; Heimenz v. Georger, 50 Mo.App. 586. (4) Under our liberal statute, amendments may be made by the substitution of one plaintiff for another where the nature of the claim is not changed. R. S. 1899, secs. 660-673; Wellman v. Dismukes, 42 Mo. 101; Thompson v. Mosely, 29 Mo. 479; Harkness v. Julian, 53 Mo. 242; State ex rel. v. Shelby, 75 Mo. 484.

GOODE, J. Bland, P. J., and Barclay, J., concur.

OPINION

GOODE, J.

--James H. Mackie, deceased, began an action on December 31, 1898, in the circuit court of the city of St. Louis, against Frederick W. Mott and George H. Sauer for a balance he claimed was due him on a contract between him and Mott and Sauer for the construction of certain houses. Mackie died pending that action. The respondent Taylor Bernard was appointed administrator of his estate, and the cause was revived in said administrator's name and proceeded with to a judgment for about twenty-five hundred dollars, from which an appeal was taken to this court where the judgment was affirmed, provided the administrator would remit six hundred dollars, which he did; so that the judgment thereafter stood for a little more than eighteen hundred dollars.

Bernard, as administrator of Mackie's estate, then took out an execution from the office of the clerk of the circuit court to enforce the judgment and delivered the same to respondent Dickman, sheriff of the city of St. Louis, with an instruction to levy upon and seize the property of Mott and Sauer. This action was brought to restrain the levy of the execution and enjoin the collection of the judgment by the appellants, on the ground that Mackie had assigned his claim against them to John M. Grant prior to the institution of the action in which he recovered judgment and, therefore, had no right to sue in his own name; but that appellants were unable to make defense against Mackie's demand on the ground that he had transferred his cause of action, because they were ignorant of the assignment until after final judgment was obtained in the cause.

The petition avers the foregoing facts, which are substantially all it averred, there being no allegation that appellants had a defense as against Grant on the merits of the other case which was not interposed therein; nor is any showing made that appellants were prejudiced by the case being prosecuted in Mackie's name, further than arose from the bare circumstance that he was not, as was claimed, the real party in interest.

A temporary restraining order was granted, but on final judgment was dissolved and the bill dismissed. The written assignment itself from Mackie to Grant was not introduced, but in lieu thereof an unsigned paper said to be a copy of the original. In fact no proof of the assignment was made by the evidence in chief introduced in behalf of appellants except the statement of respondent Bernard, contained in an affidavit filed by him at the time the application for a temporary restraining order was made, of the following purport: "Affiant was informed by James H. Mackie in his lifetime, that the assignment mentioned in the affidavit of Mr. Garvin filed herein was executed only as a collateral security for the amount due by said Mackie to Dr. Grant, and said Mackie stated and claimed there would be received a sum exceeding the claim of Dr. Grant to the amount of about fifteen hundred dollars."

As well as we can gather from the record, the affidavit of one Garvin was filed when the restraining order was applied for, and to it was appended the unsigned paper referred to in Bernard's affidavit and asserted by the appellants to be a copy of Mackie's assignment to Grant.

Appellants...