Scheufler v. Lamb
| Decision Date | 02 March 1943 |
| Docket Number | 38328 |
| Citation | 169 S.W.2d 913 |
| Parties | SCHEUFLER v. LAMB |
| Court | Missouri Supreme Court |
Rehearing Denied April 6, 1943.
Gilbert Lamb, of Salisbury, pro se.
Roy Mckittrick, Atty. Gen., and Covell R. Hewitt and Harry H Kay, Asst. Attys. Gen. (Lawrence Presley, of St. Louis, and Preston Estep, of Jefferson City, of counsel), for respondent.
This is a second appeal in the case of Lucas v. Lamb, 348 Mo. 900, 156 S.W.2d 634. (Reference is made to that opinion for statement of facts which we adopt for this case.) On the first appeal, from a judgment for defendant, this court's order and mandate was as follows: 'Accordingly, the judgment is hereby reversed and the cause remanded with directions to the trial court to enter a judgment in favor of appellant and against respondent for the amount sued for with simple interest at six per cent per annum from the date of the institution of the suit and for costs.'
Upon receiving our mandate, the court did enter judgment for $ 14,510 principal and $ 3,097.04 interest. Defendant has appealed and makes two assignments of error: (1) Refusing to permit defendant to prove the value of his services to the commissioners and custodians appointed by the Circuit Court of Cole County before entering judgment; and (2) failing to call a jury to calculate the interest due.
As to the second, defendant cites Johnson v. Grayson, 230 Mo. 380, 130 S.W. 673. This case and others following the same rule (requiring a jury, when 'ascertainment of the amount of interest is only a matter of mathematical computation') were overruled by Home Trust Co. v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 1156, 105 A.L.R. 1063. This assignment is overruled.
Likewise there can be no error in the court's refusal of defendant's offer of proof. Such proof was in the record on the original trial. Our opinion recognized the fact that defendant had performed valuable services, but held that he could not be compensated out of the funds (which had been illegally collected from and belonged to fire insurance policyholders) and that his reimbursement was a matter for the General Assembly. Defendant now contends that Lucas v. Lamb was in effect overruled by Lucas v. Central Missouri Trust Company, 349 Mo. 537, 162 S.W.2d 569. However, the latter case did not involve the right to pay fees to attorneys, or for other services, out of the trust funds belonging to the policyholders, which we have uniformly held could not be done. See AEtna Insurance Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3;AEtna Insurance Co. v. O'Malley, 343 Mo. 1232, 124 S.W.2d 1164. Since our mandate specifically directed the judgment to be entered by the...
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