State ex rel. Goldsoll v. Chatham Nat'l Bank

• Court: United States State Supreme Court of Missouri
• Writing for the Court: MARTIN
• Citation: 80 Mo. 626
• Parties: THE STATE ex rel. GOLDSOLL et al., v. THE CHATHAM NATIONAL BANK et al., Appellants.
• Decision Date: 31 October 1883

80 Mo. 626

THE STATE ex rel. GOLDSOLL et al.,
v.
THE CHATHAM NATIONAL BANK et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Bradley D. Lee for appellant.

The action of the trial court in overruling the plaintiffs' challenges of the jurors Small and Hewlett for cause, was not erroneous. They were not disqualified as jurors under the statute of the State. Their answers to the questions asked them, were not such as to show that it would be impossible for them to try the case impartially. R. S.,

[80 Mo. 627]

p. 469, §§ 2795, 2796; Eckert v. St. Louis Transfer Co., 2 Mo. App. 37; Baldwin v. State, 12 Mo. 223; McComas v. Covenant Mut. Life Ins. Co., 56 Mo. 573; State v. Hayes, 23 Mo. 287; State v. Holmes, 54 Mo. 153; Keegan v. Cavanaugh, 62 Mo. 230; O'Brien v. Vulcan Iron Works, 7 Mo. App. 257; State v. Walton, 74 Mo. 270; State v. Greenwade, 72 Mo. 298; State v. Core, 70 Mo. 461; State v. Barton, 71 Mo. 288. The trial court committed no error in its instructions to the jury. They correctly set forth the law as applicable to the facts proven in this case, and correctly stated the rules of law regulating the wife's separate property. Caughlin v. Ryan, 43 Mo. 99; Holthaus v. Hornbostle, 60 Mo. 437; Welsh v. Welsh, 63 Mo. 57. The action of the trial court in admitting the deposition of Mrs. Goldsoll in evidence was proper, as an admission, or declaration, or statement against her interest. 1 Greenleaf Ev., §§ 169, 212; 2 Wharton's Ev., § 1075, et seq; Kreitzer v. Smith, 21 Mo. 296; Charleston v. Hunt, 27 Mo. 34; Zimmer v. McLaran, 9 Mo. App. 591. The insurance policy and tax receipts were properly admitted in evidence, first, to contradict the testimony of the relatrix on material matters. Second, as tending to show her claim to the property was fraudulent, and that her husband had exercised acts of ownership over it.

Edward Cunningham, Jr., for respondent.

The action of the trial court in overruling plaintiffs' challenges for cause, was erroneous. Lyles v. State, 41 Tex. 172; Lester v. State, 2 Tex. Ct. App. 432; State v. West, 69 Mo. 401; State v. Taylor. 64 Mo. 358; Chouteau v. Pierre, 9 Mo. 3; Monroe v. State, 5 Ga. 139; Freeman v. People, 4 Denio 9. The action of the trial court in admitting in evidence the deposition of Mrs. Goldsoll was error. Gregory v. Cheatham, 36 Mo. 155, and cases cited; State v. Starr, 38 Mo. 278; Spaunhorst v. Link, 46 Mo. 197; Lohart v. Buchanan, 50 Mo. 202; State v. Elkins, 63 Mo. 165; State v. Foye, 53 Mo. 336. The admission in evidence of the

[80 Mo. 628]

insurance policy in the name of Meyer Goldsoll, and the tax returns made by him was error. Starkie on Ev., *58; Aiken v. Hodge, 61 Ill. 436; Hoyt v. Hoyt, 27 N. J. Eq. 399; Campbell v. Quackenbush, 33 Mich. 287; Pierce v. Hartrouck, 49 Ill. 23; Stewart v. Ball, 33 Mo. 154; Keeny v. Good,21 Pa. St. 355; Gamber v. Gamber, 18 Ind. 363; Primmer v. Clabaugh, 78 Ill. 94; Ryan v. Merriam, 4 Allen 79; Eystra v. Capelle, 61 Mo. 578; Hambright v. Brockman, 59 Mo. 57; Paul v. Leavitt, 53 Mo. 595; Hearle v. Kreihn, 65 Mo. 205; State v. Arnold, 55 Mo. 91; State v. Jaeger, 66 Mo. 173. The trial court erred in refusing the instructions to the jury asked by plaintiff, and in giving those it gave of its own motion, touching the creation and continuance of a separate estate of a married woman. Riddick v. Walsh, 15 Mo. 519; Prichard v. Ames, Turner & Russ. 222; Holthaus v. Hornbostle, 60 Mo. 442; Gentry v. McReynolds, 12 Mo. 533; Coughlin v. Ryan, 43 Mo. 99; Welsh v. Welsh, 63 Mo. 57; Clark v. McGuire, 16 Mo. 302; Boal v. Morgner, 46 Mo. 48.

MARTIN, C.

This was an action on a bond of indemnity, given by the appellants to the sheriff of St. Louis, to indemnify Sarah Goldsoll for damages she might sustain by reason of the seizure, under writ of attachment, in favor of appellants, of certain personal property consisting of household furniture. The attachment was against her husband, and the property was seized as belonging to him. The answer denies the right of property in the wife, and alleges it as being in the husband at the date of the seizure. The jury found that certain articles sued for were presents given Sarah Goldsoll since the 25th of March, 1875, and for which they assessed damages in her favor in the sum of $148.51. Judgment was rendered in favor of plaintiff in accordance with this verdict. The plaintiff appealed, and the St. Louis court of appeals reversed and remanded the cause. State ex rel. v. Chatham National Bank, 10 Mo. App. 482.

The case seems to have been elaborately presented to

[80 Mo. 629]

the court of appeals, which gave two decisions on the merits of the case, one being on the motion for rehearing. That court reversed and remanded the case for error in the trial court giving of its own motion the following instruction:

Touching the ownership of the property in controversy, the court instructs the jury as follows:

1. If you believe from the evidence that Mrs. Goldsoll's father, prior to her departure for this country, gave her $6,000, or any greater or less sum of money, for the purpose expressed at the time of the gift, that it was intended as a provision for the support of herself and children, and if you find that she also had at the time other money and jewels which she had earned and acquired whilst transacting business in her own name, and on her own account in Russia, and if you believe she brought with her to this country the funds thus given to her, and thus earned and acquired, and that after her...