Schneider v. Fennewald, No. 20012.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDaues
Citation300 S.W. 1023
PartiesSCHNEIDER v. FENNEWALD.
Docket NumberNo. 20012.
Decision Date10 January 1928
300 S.W. 1023
SCHNEIDER
v.
FENNEWALD.
No. 20012.
St. Louis Court of Appeals. Missouri.
January 10, 1928.
Rehearing Denied January 24, 1928.

[300 S.W. 1024]

Appeal from Circuit Court, Audrain County; Henry J. Westhues, Special Judge.

"Not to be officially published."

Action by Helen Schneider against George H. Fennewald. From a judgment for defendant on a plea in abatement, plaintiff appeals. Affirmed.

W. W. Botts, of Mexico, Mo., for appellant. Rodgers & Buffington, of Mexico, Mo., for respondent.

DAUES, P. J.


This is an attachment suit. Plaintiff's petition charges that defendant owed her the sum of $2,000, as evidenced by a promissory note, which note is made an exhibit, alleges that defendant has fraudulently conveyed his property so as to hinder and delay his creditors, and has fraudulently concealed his property for like purposes, and prays judgment for $2,000 with interest, and also prays for an attachment of defendant's property. An attachment writ was issued showing a levy and seizure of a certain 320-acre farm in Audrain county, Mo. The defendant filed a plea in abatement, denying all of the allegations of the affidavit for attachment, and denying the truth of the facts alleged on which the attachment was sued out. The plea is verified.

The cause on the plea in abatement was tried before Hon. Henry J. Westhues, judge of the Thirteenth judicial circuit, sitting as judge of the Audrain county circuit court, with a jury. There was a verdict and judgment in favor of defendant. It appears that subsequently there was a judgment in favor of plaintiff on the note, but no appeal was taken therefrom. The clerk of the lower court sent the transcript in the case on the merits. By stipulation, that appeal was dismissed, and this cause substituted in lieu thereof, so that we have before us the appeal of plaintiff from the judgment of the plea in abatement only.

There is a motion filed by respondent to dismiss the appeal because of imperfections in the abstract of the record. We confess it does not technically comply with our rules in several respects, but we have concluded that it would best serve justice to overrule the motion to dismiss, and this is done.

Appellant's brief does not contain any assignments of error, but under "Points and Authorities" submits twenty-three grounds or reasons why this judgment should not be permitted to stand. In the argument in the brief these points and authorities are so interwoven that we will have to look to the points and authorities for our analysis.

The chief complaint made by appellant is that the verdict is against the weight of the evidence. Plaintiff offered no demurrer to the evidence, and was given every instruction asked. We will examine to see whether the verdict for defendant is supported by substantial evidence. We, as an appellate court, have nothing to do with the weight of the evidence. That is for the jury.

Plaintiff made a prima facie case. This is conceded, but there was strong proof on the part of defendant which counters this prima facie case. The proof shows that defendant was a farmer in Audrain county, engaged in farming and dealing in live stock, and that he had been so engaged for many years. He deviated from that path and speculated in grain on the stock market. In 1920 fortune favored him on the Board of Trade, and he made considerable money. This encouraged him to continue, driving the usual result—he lost his large earnings, together with his own money and such money as he was able to borrow. He fell behind in his deposits with the brokers, and, finally, on March 6, 1926, he went to his wife and father, the latter being a very old man, and borrowed $2,500. This amount, it was shown, was to take up certain of his checks on banks where he had no funds and which he had given to grain speculators, and so done, as there is evidence to show, to avoid prosecution. On March 3, 1926, or three days prior to the last-mentioned date, defendant owned a 320-acre farm in Audrain county where he resided with his family. This farm was twice mortgaged and in the aggregate amount of $11,000. He was also indebted as principal on a note to the First National Bank of Mexico on three notes aggregating $9,500, and was also indebted to the Martinsburg bank for $8,700. On these notes, except the note for $3,000 held by the First National Bank, defendant's father, Barney Fennewald, was security.

There is evidence that at that time defendant

300 S.W. 1025

was also indebted to his father for $8,925. These notes were signed by the defendant and his wife. It was at this time and prior to March 1, 1926, that defendant was indebted to commission brokers in large sums of money for margins which they had advanced him. At the end of February, 1926, the First National Bank called defendant to pay his notes. Defendant had no money, and frankly told the president of the bank that he had...

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1 practice notes
  • Tate v. Tate, No. 17468.
    • United States
    • Court of Appeal of Missouri (US)
    • April 3, 1933
    ...sufficient. [Matthews v. Matthews, 34 S.W. (2d) 518, l.c. 522; Johnson v. Johnson, 95 Mo. App. 329, l.c. 331; Barriceilli v. Barricelli, 300 S.W. 1023; Coulter v. Coulter, 124 Mo. App. 149, l.c. 153; Arndt v. Arndt, 177 Mo. App. 420; Clark v. Clark, 191 Mo. App. 278, As heretofore stated, t......
1 cases
  • Tate v. Tate, No. 17468.
    • United States
    • Court of Appeal of Missouri (US)
    • April 3, 1933
    ...sufficient. [Matthews v. Matthews, 34 S.W. (2d) 518, l.c. 522; Johnson v. Johnson, 95 Mo. App. 329, l.c. 331; Barriceilli v. Barricelli, 300 S.W. 1023; Coulter v. Coulter, 124 Mo. App. 149, l.c. 153; Arndt v. Arndt, 177 Mo. App. 420; Clark v. Clark, 191 Mo. App. 278, As heretofore stated, t......

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