Rhodes v. Guhman

• Decision Date: 08 May 1911
• Citation: 137 S.W. 88,156 Mo.App. 344
• Parties: JOHN F. RHODES, Receiver, Respondent, v. JOHN S. GUHMAN, Appellant
• Court: Missouri Court of Appeals

137 S.W. 88

156 Mo.App. 344

JOHN F. RHODES, Receiver, Respondent, v. JOHN S. GUHMAN, Appellant

Court of Appeals of Missouri, Springfield

May 8, 1911

Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.

Judgment reversed and case remanded.

John A Gloriod and Ernest A. Green for appellant.

(1) The court erred in overruling the defendant's exceptions to the referee's report for the reason that the referee had improperly overruled defendant's application for a continuance. Campbell v. McCaskill, 88 Mo.App. 44; Shoe Co. v. Hilig, 70 Mo.App. 301; Distilling Co. v. Van Frank, 88 Mo.App. 50. (2) The court erred in confirming the referee's report because the referee had no jurisdiction to hear this cause after the time had expired within which he was to file his report. The referee had no jurisdiction to make any order whatever in the premises after the first day of the July term of the circuit court of Butler county. R. S. 1909, sec. 1998; Francisco v. Rowland, 14 Mo.App. 600; Hadley v. Benero, 97 Mo.App. 314; State v. Pope, 110 Mo.App. 520; Harding v Bedoll, 202 Mo. 625. (3) The court and referee erred in any event in not allowing to defendant the credit of $ 1350.50 appearing on the back of the note sued on in the second count of plaintiff's petition; and they furthermore erred in refusing to render judgment in favor of defendant for said amount, same being the amount improperly charged by the Greenville Bank against the deposit account of defendant and credited on said note of William A. Grow. Bank v. Keith, 85 Mo.App. 409; R. S. 1909, sec. 9989. (4) The court and referee erred in not rendering judgment for the defendant on his third counterclaim for eight thousand dollars, the amount the testimony showed he had on deposit in the Greenville Bank. R. S. 1909, sec. 1810; St. Louis to Use v. Clemens, 36 Mo. 467. (5) Under all the pleadings the judgment in this cause should have been for defendant on the second and third counts of plaintiff's petition. R S. 1909, secs. 9989, 9991; Dorman v. Hall, 124 Mo.App. 5; Baum v. Stephenson, 133 Mo.App. 187; Joplin v. Hollingshead, 123 Mo.App. 602; Tate v. Railroad, 131 Mo.App. 107; R. S. 1909, sec. 1985; Hammerslough v. Cheatham, 84 Mo. 13; Association v. Obert, 169 Mo. 507; Sain v. Rooney, 125 Mo.App. 176; Short v. Taylor, 137 Mo. 517; Drumm Flato Com. Co. v. Summers, 89 Mo.App. 300; Meyer Bros. v. Ins. Co., 73 Mo.App. 176.

J. F. Meador for respondent.

(1) No exceptions were filed to the report of the referee at least, timely exceptions. R. S. 1909, sec. 2012; Gibson v. Jenkins, 97 Mo.App. 27; Reinecke v. Jod, 56 Mo. 386; Gaston v. Kellog, 91 Mo. 104; Dallas v. Brown, 60 Mo.App. 493; Clark v. Kane, 37 Mo.App. 258; Harding v. Bedol, 202 Mo. 625. (2) The finding of the referee is a special verdict, and in so far as it determines the facts, will be accepted as true, where there is substantial evidence to support it. Tufts v. Latshaw, 172 Mo. 359; Bank v. Donnell, 172 Mo. 384; Howard County v. Baker, 119 Mo. 397; Daily v. Timons, 47 Mo. 516; Bissell v. Warde, 129 Mo. 439; Citizens v. McDermott, 109 Mo.App. 306. (3) Questions with respect to the referee's finding of facts in order to be available upon appeal, must be raised by timely exceptions to the referee's report. Tufts v. Latshaw, 172 Mo. 359. (4) The granting of a continuance of a cause rests in the sound discretion of the court. There was no error on the part of the referee in refusing a further continuance to defendant after the 21st day of July, 1909. Carpenter v. Myers, 32 Mo. 213; Leabo v. Goode, 67 Mo. 126; State v. McGuire, 69 Mo. 197; State v. Rainey, 137 Mo. 102; State v. Banks, 118 Mo. 117.

OPINION

NIXON, P. J.

This was an action commenced in the circuit court of Wayne county in which a change of venue was granted to Butler county and in which action it was sought to recover judgment on three different counts. Upon judgment being rendered for plaintiff, defendant appealed.

The petition is as follows: (Caption omitted).

"Plaintiff states that at the time of the execution of the note sued on and the other instruments named, the Greenville Bank was a corporation duly organized under the banking laws of the State of Missouri and doing a general banking business.

"That on the day of , 1907, the Secretary of State and acting as Bank Examiner declared said Greenville Bank to be insolvent and reported the same to the Attorney-General of the State of Missouri; that thereupon Herbert S. Hadley, Attorney-General of the State of Missouri, filed a petition in the circuit court of Wayne county, Missouri, alleging that said Greenville Bank was insolvent and asking that a receiver be appointed, and said cause coming on to be heard at chambers, and all and singular the things set forth in said petition being heard by the judge of said court at chambers, did in all things sustain the same and did appoint John F. Rhodes as receiver of said Greenville Bank, who did duly qualify as such receiver and has been ever since and now is the duly qualified and acting receiver of said Greenville Bank.

"Plaintiff for cause of action states that defendant on the 22d day of September, 1906, made, executed and delivered to the Greenville Bank his certain promissory note of the following tenor, to-wit:

$ 1500. GREENVILLE, MO. Sept. 22, 1906.

'Six months after date I promise to pay to the order of the Greenville Bank, fifteen hundred dollars, at Greenville Bank, for value received, negotiable and payable without defalcation or discount, and with interest from maturity at the rate of eight per cent per annum; it is also agreed that all signers and endorsers of this note, either as principal or security, demand protest and notice of protest waived. It is further agreed that if this note is collected by suit or through an attorney, ten per cent additional shall be added to cover costs of collection.

(Signed.) 'JOHN S. GUHMAN.'

"Which said note is herewith filed and marked Exhibit 'A.'

"Plaintiff states that said note was delivered to him as a part of the assets of the Greenville Bank that no part of said note has been paid, but that the whole amount of said note, together with interest, remains due and unpaid, all of which will fully appear by reference to a copy of said note, which is herewith filed and marked Exhibit 'A.'

"Wherefore plaintiff prays judgment for fifteen hundred dollars, with interest at eight per cent from the maturity of said note, and also for ten per cent as attorney's fees, as in said note provided.

"Plaintiff for another and further cause of action states that the defendant made, or caused to be made, what purported to be a promissory note which was made for the intent and purpose of cheating and defrauding the Greenville Bank. Which said pretended note is and was of the following tenor, to-wit:

'1500. ST. LOUIS, MO., Oct. 22, 1906.

"Six months after date I promise to pay to the order of National Trust Realty Institution, fifteen hundred dollars, for value received, negotiable and payable without defalcation or discount, with interest at the rate of six per cent per annum from date, payable at any bank in Missouri.

(Signed.) 'WILLIAM A. CROW.'

"Which said note is herewith filed and marked Exhibit 'B.'

"Plaintiff charges and avers that said note was falsely and fraudulently made for the purpose of cheating and defrauding the Greenville Bank, and in order to carry out the nefarious designs of J. S. Guhman, that he endorsed said note as follows:

"National Realty Trust Institution,

By John S. Guhman, President."

"Plaintiff avers that there is no such company or corporation as the National Trust Institution, but that name is and was used by John S. Guhman to deceive the unsuspected. Plaintiff avers that the note described was made and executed by the defendant to cheat and defraud the Greenville Bank. And that said pretended and fraudulent note was by said defendant delivered to the Greenville Bank as the note of the pretended National Realty Trust Institution. That said John S. Guhman is the so-called Realty Trust Institution; that by virtue of said pretended note and false token which was delivered by the defendant to the Greenville Bank, the said defendant procured from the said Greenville Bank the sum of fifteen hundred dollars.

"Wherefore, plaintiff prays judgment for said sum of fifteen hundred dollars, together with interest at the rate of six per cent per annum from Oct. 22, 1906, and for costs.

"Plaintiff for another cause of action states that the defendant with intent to cheat and defraud the Greenville Bank, made or caused to be made a purported note of the following tenor, to-wit:

'$ 1500. GREENVILLE, MO., Feb. 20, 1907.

'Six months after date I promise to pay to the order of the Greenville Bank five hundred dollars, for value received, negotiable and payable without defalcation or discount, and with interest from maturity at the rate of eight per cent per annum. It is also agreed that all signers and endorsers of this note, either as principal or security, demand protest and notice of protest waived. It is further agreed that if this note is collected by suit or through an attorney, ten per cent additional shall be added to cover costs of collection.

(Signed.) 'DAVID F. WILLIAMS,

'POTTSVILLE, PA.

'JAMES ENLOE,

'GREENVILLE MO.'

"A copy of said pretended note is herewith filed and marked Exhibit 'C.'

"That said note was not made and executed by David F. Williams, but was made and executed by John S. Guhman, defendant herein for the purpose of unlawfully and illegally defrauding the Greenville Bank; that said John S. Guhman deposited said note in said Greenville Bank and falsely and fraudulently obtained on said pretended note from said Greenville Bank in...