Schneider v. Fennewald
| Citation | 300 S.W. 1023 |
| Decision Date | 10 January 1928 |
| Docket Number | No. 20012.,20012. |
| Parties | SCHNEIDER v. FENNEWALD. |
| Court | Court of Appeal of Missouri (US) |
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.
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 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 none, but that he would turn to his father for aid. There is evidence that defendant up until that time was considered solvent by the public and, indeed, by his father and his wife. After March 3, 1926, one Leslie Freyer called on defendant's father and asked him to secure certain notes which Freyer held against defendant. The father then told Freyer that if he had come sooner he would have made such indorsement but that he was now convinced that the son was broke and he could not therefore indorse the paper. Both the father and Freyer agreed that they were surprised that recent developments had shown the defendant to be financially broke.
The record contains evidence that after defendant went to the First National Bank, and when the bank was demanding that he pay his notes, he went with his wife to the home of his father. On the way, defendant confided to his wife that he had lost everything. He then told his father the same thing, and also explained to him the predicament he was in with reference to the outstanding bad checks and other obligations. It was then that defendant proposed to his father that he would deed him his 320-acre farm, against which `there was an $11,000 mortgage, if the father would assume the payment of the mortgage and pay defendant's notes at the two banks and cancel and surrender the two notes, one for $4,500 and the other for $4,425 which the father then held against him. This the father agreed to do. On the next day they went to the city of Mexico, in Audrain county, where they conferred with Mr. Arnold, president of the First National Bank. The deed was then executed and recorded; the old notes of Barney Fennewald, the father, were canceled, and the father then gave the bank his individual notes for $9,700 and $8,700,...
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