O'reilly v. Cleary

• Decision Date: 30 December 1879
• Citation: 8 Mo.App. 186
• Parties: HENRY B. O'REILLY, Appellant, v. THOMAS CLEARY ET AL., Respondents.
• Court: Missouri Court of Appeals

8 Mo.App. 186

HENRY B. O'REILLY, Appellant,

v.THOMAS CLEARY ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Dec. 30, 1879.

1. Where a convict pays money to another to secure a pardon, he cannot, after the contract is executed, recover back the money paid. In such a case it is immaterial that the contract was made while the civil rights of the convict were suspended, or that the parties were not in pari delicto.

2. Where the bill of exceptions does not preserve the testimony, the presumption is in favor of the action of the trial court in confirming the referee's report as to his findings of fact and rulings upon questions of evidence.

3. Where the court overrules exceptions to a referee's report, and confirms the report, it then properly enters judgment on the report itself.

4. Attorneys' fees may be allowed in favor of the garnishee, in garnishment on execution, and taxed as costs in the case; and a bond for costs necessarily includes such fees.

5. Unless the allowance to a referee is clearly excessive, an appellate court will not interefere to reduce it.

6. Where one of the issues is as to a note, which is surrendered during the trial, the effect of this is simply to withdraw that issue, and does not affect the question of costs.

APPEAL from the St. Louis Circuit Court.

Affirmed.

HENRY B. O'REILLY, pro se: There was neither trial nor judgment as required by law.-- Pomeroy v. Benton, 6 Mo. App. 596; Ely v. Ownsley, 59 Mo. 437; O'Neil v. Capelle, 62 Mo. 202. Attorneys' fees cannot be taxed as costs in garnishment.-- Tallahassee County v. Glenn, 50 Ala. 489; Apperson v. Insurance Co., 38 N. J. L. 388; McDonald v. Page, Wright, 121. The civil rights of Maguire being suspended by his sentence, he could not contract.-- Presbury v. Hull, 34 Mo. 29; Beck v. Beck, 36 Miss. 72; Miller v. Finke, 1 Park. Cr. 374; Stephens v. Elwell, 4 Mau. & Sel. 259; Williams v. Wall, 60 Mo. 318. The contract with Cleary is void as against public policy.-- Hatzfield v. Gulden, 7 Watts, 152; Kribben v. Haycraft, 26 Mo. 396; Pearsall v. Chapin, 44 Pa. St. 9. The parties were not in pari delicto.-- Williams v. Headley, 8 East, 378; Tracy v. Talmage, 14 N. Y. 182; Davis v. Luster, 64 Mo. 43.

ROBERT M. FOSTER, for the respondents.

BAKEWELL, J., delivered the opinion of the court.

The plaintiff, having obtained judgment by confession against Maguire for $2,904.83, summoned the defendant Cleary as garnishee on execution. Issue being made upon the denial and reply, the cause was referred to a referee. The plaintiff filed exceptions to the report of the referee, which were sustained. The plaintiff then moved for judgment against the garnishee. This motion was overruled. The garnishee then filed an amended reply, and the cause was referred by the court to another referee, who made a report accompanied by all the evidence and proceedings had before him. None of the evidence or proceedings before the referee are preserved in this record. The referee states in his report that the plaintiff, at the opening of his case, waived any claim against Cleary except for the following specific sums, which he says Cleary owed Maguire at the date of the garnishment: $2,500 retained by Cleary for his services in securing the pardon of Maguire and wife out of the Missouri penitentiary; $300 paid by Cleary to one Jackson, and $500 paid by Cleary to one Stancil, both sums to secure influence for the pardon; and $1,000 retained by Cleary for board, clothes, and washing for Maguire and wife. There was also a claim for a note made by one Pohlman, noticed in the course of this opinion.

The referee finds that Maguire and wife were convicted of murder, and sentenced and transferred to the penitentiary in August, 1873, and discharged by pardon in March, 1874; that the $2,500 was given by Maguire to Cleary to secure his services to obtain the pardon, which was subsequently obtained by Cleary's efforts; that Maguire authorized Cleary to expend the $800 paid to Jackson and Stancil; that he paid them the money according to Maguire's desire, and that Maguire ratified the payment; that these moneys were paid for the illegal purpose of securing the pardon; that the transactions are complete, and the court will leave the parties as they are, and will neither enforce such a contract while executory, nor lend its aid to rescind it and recover back the consideration when paid; that these transactions took place while the civil rights of Maguire were suspended by his sentence, and that this fact gives, neither to Maguire nor to the plaintiff, any right to recover this money from Cleary. And the referee finds that the plaintiff is not entitled to recover. The plaintiff filed exceptions to this report, which were overruled. The court confirmed the report, and rendered judgment thereon against the plaintiff and his sureties on the bond, for costs.

The finding of a referee stands as the verdict of a jury. The appellant argues against this rule, but it is well established. In an equitable proceeding the finding of a referee as to facts is subject to review, both in the trial court and here; but in a proceeding at law, where the evidence is preserved in the record, we will look into it no further than is necessary to determine that there is substantial evidence to support the verdict of a jury or the finding of a referee. In the present case the testimony is not before us, and we are legally bound to presume that the trial court committed no error in confirming the findings of the referee as to facts, and his rulings as to the admission and exclusion of evidence.

The appellant objects that the record entry shows that the judgment was not “the conclusion of the law upon the facts as considered by the court.” The judgment entry is as follows: “The plaintiff's exceptions to the referee's report herein being heard and fully considered by the court, are overruled; thereupon it is ordered by the court, that the report of said referee be, and the same is in all things hereby confirmed; and it appearing to the court from said report that the referee has found that the plaintiff is not entitled to recover in this proceeding against Thomas Cleary, garnishee, thereupon it is ordered and adjudged by the court that said plaintiff take nothing by his suit in this behalf, but that said garnishee go hence without day,” etc. We see nothing objectionable in this form of judgment. The counsel for the appellant refers to what was said by this court in the case of Pomeroy v. Benton. In that case the entry did not show that the trial court had passed upon the report of the referee. Where exceptions are filed to the report, and are not allowed, the court confirms the report, and then properly renders judgment upon the report itself. Reinecke v. Jod, 56 Mo. 387. The case at bar was a case of that class in which the issues of fact were triable by a jury. When a case not of equitable jurisdiction is referred, the trial court may set aside the report (as it might have set aside a verdict) as against the weight of the evidence, though it is no error of law to refuse to do so; and when that court has passed upon exceptions filed, and has confirmed the report of the referee, and, as in this case, there is no pretence that there was not some evidence to support the findings...