Rawlins v. Rawlins

• Decision Date: 19 January 1891
• Citation: 15 S.W. 78,102 Mo. 563
• Parties: RAWLINS v. RAWLINS.
• Court: Missouri Supreme Court

15 S.W. 78

102 Mo. 563

RAWLINS v. RAWLINS.

Supreme Court of Missouri.

January 19, 1891.

REVIEW ON APPEAL — FINDINGS IN EQUITY.

In cases of equitable cognizance, the findings of fact of the trial judge will not be reversed, unless it is clear that the preponderance of the evidence is against them.

Error to circuit court, Linn county; G. D. BURGESS, Judge.

Plaintiff's case is that defendant (his father) was duly appointed guardian of the persons and estates of plaintiff and John J. Rawlins and Fielding J. Rawlins, in September, 1874, and that defendant then gave bond as such; said minors were defendant's children; that their mother, Mary Rawlins, died in December, 1869, and her father, Isaac Gerhart, in 1873; that John J. Rawlins died in 1878, unmarried and without issue; that plaintiff became of age in July, 1882, and defendant made his final settlement as plaintiff's guardian in the probate court, October, 1882, and thereupon was discharged; that plaintiff, from 1870 until October, 1882, was the owner of certain land (described) in Livingston county; that from 1870 to October, 1882, defendant was in possession of said land, and converted the rents, issues, and profits thereof to his own use; that the monthy value of the rents, etc., during that time, was $25, and that the total value of said rents for said period was $3,600; that defendant fraudulently omitted to charge himself in either of his annual settlements, or in his final settlement, with any part of said rents; that plaintiff never knew until 1884 that he had any interest in said lands, and defendant fraudulently concealed that fact from him; in consequence of which plaintiff prayed that said final settlement be vacated, and for a just accounting, as demanded by the facts. The defense consisted of several special matters, among others an alleged former recovery, and an accord and satisfaction, or "settlement," as it is termed. A reply put these defenses in issue. The trial of the cause resulted in a finding and judgment for defendant, after which plaintiff moved for a new trial on these grounds, viz.: (1) Because the court erred on the trial in excluding competent evidence offered by plaintiff, and in admitting incompetent evidence offered by defendant; (2) because the finding is against the law and the evidence; (3) because the finding should have been for the plaintiff instead of the defendant. This motion was overruled, exceptions saved, and an appeal taken by defendant.

S. P....