Roberts, Johnson & Rand Shoe Co. v. Shepherd
| Decision Date | 01 December 1902 |
| Citation | 70 S.W. 931,96 Mo.App. 698 |
| Parties | ROBERTS, JOHNSON & RAND SHOE COMPANY, Appellant, v. HOMER C. SHEPHERD, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
John A Cross & Sons and W. S. Herndon for appellant.
(1) Joint trustees constitute but one person in law, and when the administration of a trust is vested in co-trustees they all form but one collective trustee, and all must join or be joined in a suit with respect to the trust property. White v. Watkins, 23 Mo. 423; Vandever's Appeal 8 W. & S. 405; Perry on Trusts (4 Ed.), sec. 411; 22 Ency. Plead. and Prac., p. 19, and note. (2) The possession of Shepherd and Coulson, under the deed of trust, was a joint possession, and one defendant could not prosecute his appeal without joining his co-defendant. Perry v. Block, 1 Mo. 484; Fagan v. Long, 30 Mo. 222; Urton v Sherlock, 61 Mo. 257; Gray v. Dryden, 79 Mo. 106; State ex rel. v. Talty, 139 Mo. 379. (3) When defendant Shepherd, alone appealed, the judgment of the justice against Coulson, remained in full force and effect, and was a bar to any judgment in favor of Shepherd. Urton v. Sherlock, supra; Gray v. Dryden, supra; Paving Co. v. Botsford, 50 Kan. 331; McIntyre v. Shitly, 139 Ill. 175. (4) All the parties against whom the judgment below was given must join in the appeal. Owing v. Kincannon, 7 Pet. 404; Simpson v. Greeley, 20 Wall. 152; Williams v. Bank, 11 Wheat. 414. (5) Where there is a joint judgment against several, it is irregular for one to sue out a writ of error or bring an appeal. Bockes v. Hathorn, 78 N.Y. 226; Williams v. Tel. Co., 93 N.Y. 164; Hardee v. Wilson, 146 U.S. 179; Hohorst v. H. P. Co., 148 U.S. 460; Nash v. Harshman, 149 U.S. 263; Hampton v. Rouse, 13 Wall. 187; Masterson v. Howard, 10 Wall. 416. (6) The uncontroverted evidence shows that the firm of Goff Bros. were guilty of fraud, which gave the plaintiff the right to rescind the sale, and retake their goods, which were not paid for. Mfg. Co. v. Trall, 77 Mo.App. 339; Plow Co. v. Wayland, 81 Mo.App. 306; Milling Co. v. Burns, 152 Mo. 350; Montgomery v. Machine Co., 92 U.S. 257; Donaldson v. Farwell, 93 U.S. 631. (7) The court erred in its ruling on the admission of evidence, on the character of the witness, M. A. Goff, for truth and veracity. Fulkerson v. Murdock, 53 Mo.App. 151; Alkire v. Grocery Co., 78 Mo.App. 166. And the fact that said Goff was charged with fraud did not put his character in issue, or justify evidence of his reputation. Dudly v. McClure, 65 Mo. 243. (8) The court erred in giving instruction number two for the defendant.
F. B. Ellis for respondent.
(1) This appeal is not taken by the plaintiff but by the defendant, and a different rule applies. Gray v. Dryden, 79 Mo. 108; Urton v. Sherlock, 61 Mo. 257; Jenkins v. Bank, 97 Ill. 568; Oneal v. Dougherty, 46 Cal. 575; Gray v. Dryden, 79 Mo. 108. (2) The court could properly admit evidence of the good character of the witness Goff. Berryman v. Cox, 74 Mo.App. 446. Besides it was admitted that the character of witness Goff was excellent and if there was any error the plaintiff invited it, and he can not now complain. (3) If instruction No. 2 was error it was invited by the appellant and he can not complain of an error invited by him, besides the defendant intended to try the case on the theory adopted by the appellant in its third instruction. More Bier v. Hursdale, 77 Mo.App. 222; Porter v. Leybe, 67 Mo.App. 540.
--On February 26, 1901, plaintiff instituted this suit before a justice of the peace for Clinton county, for the possession of two hundred and forty pairs of shoes of their own manufacture. Under the writ of replevin issued in the case, plaintiff obtained possession of the property. On the trial before the justice of the peace, the plaintiff company recovered judgment against both defendants, from which judgment the defendant Shepherd alone appealed to the circuit court of the county, where the case was again tried, the trial resulting in a verdict and judgment for the defendant Shepherd, from which the plaintiff has appealed to this court.
The plaintiff sought to recover on the ground that about the thirtieth day of October, 1900, a firm doing business at Lathrop, Missouri, under the name of Goff Bros. bought and obtained the goods from the plaintiff by false representation as to their solvency. On the twenty-fifth day of February, 1901, said Goff Bros. conveyed their property consisting of merchandise and other property to the defendants for the benefit of their creditors. Subsequently on the second of March, 1901, they filed their petition in the United States court, and asked to be adjudged bankrupts, under the act of Congress regulating proceedings in bankruptcy. During the pendency of said proceedings, defendant Shepherd was appointed trustee of the Goff Bros. estate, and was acting as such at the time of the trial in the circuit court, but was not so acting at the time the writ of replevin was issued, and the goods taken thereunder.
At the beginning of the trial the plaintiff objected to the court proceeding with the case, upon the ground that it had acquired no jurisdiction by appeal, for the reason that the judgment of the justice was against two defendants to the suit, and one only, the defendant Shepherd, had appealed. The objection was overruled and the plaintiff excepted to the action of the court in overruling its objection. During the trial, a witness for the defendant (John Summers) was allowed, over the objection of plaintiff, to testify to the good reputation of M. A. Goff, a member of the firm of Goff Bros., who was also a witness for defendant. After the objection of plaintiff had been overruled, plaintiff's attorney said:
The plaintiff relies on the following grounds for a reversal of the case: First, the error of the court in not dismissing the appeal from the justice's court, for the reason that the defendant Shepherd alone could not take and prosecute such appeal. Second, that the court committed error in allowing defendant to prove the good reputation of the witness M. A. Goff, as the same had not been assailed and put in issue by plaintiff. Third, error of the court in giving instruction No. 2 for defendant.
If the plaintiff is right in the first instance, the circuit court had no jurisdiction by appeal, consequently this court has none, in which event we would not be authorized to pass upon the second and third assignment of errors. Among the earliest decisions of the State, we find a case where it was held that one of two defendants might appeal from a judgment of a justice of the peace. Perry v. Block, 1 Mo. 487. See also Fagan v. Long, 30 Mo. 222. Section 4059, Revised Statutes 1899, provides that, any person aggrieved by a judgment rendered by a justice of the peace, except a judgment by confession, may appeal. Unless an appeal could be taken by one defendant in a case where there was a judgment against several defendan...
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