State ex rel. Grabinsky v. Smit

• Decision Date: 08 December 1885
• Citation: 20 Mo.App. 50
• Parties: STATE TO USE OF MARY GRABINSKY ET AL., Respondents, v. H. M. SMIT ET AL., Appellants.
• Court: Missouri Court of Appeals

20 Mo.App. 50

STATE TO USE OF MARY GRABINSKY ET AL., Respondents,

v.H. M. SMIT ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 8, 1885.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, JUDGE.

Affirmed.

J. W. COLLINS, for the appellants: Whatever personal property belonged to the wife before mariage, is by the marriage absolutely vested in the husband. 2 Bl. Com., Cooley's ed. 433; 2 Kent, Com., 12 ed. 143; Woodford v. Stephens, 51 Mo. 443; Walker v. Walker, 25 Mo. 367. Evidence of a separate estate must be clear, positive, and free from taint. Holthaus v. Hornbostle, 60 Mo. 440; Fisk v. Wright, 47 Mo. 351. It was not shown that the property claimed by Mary Grabinsky was her separate property; and a married woman can only have an agent for her separate property. Wilcox v. Todd, 64 Mo. 390; Hall v. Callihan, 66 Mo. 316. The bond should have been alleged to be lost in the petition, in order to entitle respondents to go on with the suit. Rev. Stat. Mo., 1879, sect. 3560.

R. S. MACDONALD and E. P. JOHNSON, for the respondents: Assuming that all of the property came to Mary Grabinsky by inheritance, Max Grabinsky never reduced it to his possession and it was, therefore, her property. Bangert v. Bangert, 13 Mo. App. 144; Walsh v. Chambers, 13 Mo. App. 301; Tennison v. Tennison, 46 Mo. 77. The property in controversy became the separate property of Mary Grabinsky in a foreign country, and he could not have reduced it to his possession in this country so as to make it his own without her consent. The State ex. rel. Goldsoll v. Chatham Nat. Bank, 80 Mo. 626; s. c. 10 Mo. App. 482. Max Grabinsky permitted his wife to hold and use the property as hers and that made it hers. McCoy v. Hyatt, 80 Mo. 130; Hammons v. Renfrow, 84 Mo. 332. The claim of Mary Grabinsky was sufficiently proved by the return of the constable, which the statute required him to make and without which claim the bond could not have been taken. Sections 2, 3, Laws, 1855, p. 464. Besides, the execution of the bond was an acknowledgment that the claim had been made, and moreover a waiver of the making of a claim, if in fact it had not been made, and estopped a denial of that fact. The State v. Williams, 77 Mo. 463. The bond having been lost, and a copy of the bond having been filed and lost, parol evidence of the contents of it that were denied was admissible in evidence. Cross v. Williams, 72 Mo. 577.

THOMPSON, J., delivered the opinion of the court.

This was an action upon an indemnifying bond given under the sheriff and marshal's act applicable to St. Louis. The petition recites the rendition of two judgments against Max Grabinsky by a justice of the peace in favor of the principal defendants herein; the levy by a constable of executions, issued under such judgments upon certain personal property; a claim of the same by Mary Grabinsky, this plaintiff, and the execution of an indemnifying bond to her under the statute, setting out the condition of the bond in hæc verba. The answer admits the rendition of the judgments, the levies of the executions, and the giving of the bond as stated, but denies that a claim was made in writing verified by affidavit, as alleged in the petition, and denies that the condition of the bond was as stated in the petition, but does not undertake to state what the condition of the bond was. There was a trial in the circuit court before a jury and a verdict and judgment for the plaintiff.

There was evidence tending to show that the plaintiff, Mary Grabinsky, is the wife of Max Grabinsky; that about seventeen years before the trial, and consequently before the passage of the act of 1875 relating to the separate property of married women, she came to this country, bringing with her some $2,500, which she had inherited from her parents and received from her stepfather; that she joined her husband, who had previously come to this country, in Montana; that they afterwards came to St. Louis; that she went into business in St. Louis in various trades, twice as partner of other persons, and finally in the business of running the grocery, upon the stock of which the levies in question were made. A power of attorney executed by her in 1873 and recorded in the office of the recorder of deeds in the city of St. Louis, empowering her husband to transact all business for her and in her name, was put in evidence against the objection of the defendant. The constable's return to the principal execution recited the levy, a claim of the property as exempt by Max Grabinsky, and also a claim of the property by Mary Grabinsky, and the giving by the plaintiff in the execution of an indemnifying bond. The bond was not produced at the trial, but the plaintiff's attorney testified that he had the original bond before him at the time he drew the petition, and that the condition of the bond was the same as that set out in the petition.

The argument made by the learned counsel for the defendants at the bar would impress us very much, if this were a suit in equity in which we had the power to deal with the facts. But it was a suit at law, tried by a jury, and it is sufficient for us to say with reference to the facts that, although the state of facts which the plaintiff's evidence tended to prove was so much shaken by evidence produced by the defendants that we might be able, if sitting as chancellors, to reach a conclusion contrary to that reached by the jury; yet, as there was substantial evidence to support their verdict, we cannot interfere with it.

All the instructions offered by the opposing counsel were given, and, therefore, the defendants are limited in their complaint under this head to the action of the court in giving two instructions for the plaintiff. The first was as follows: “If the jury believe from the evidence that Mrs. Mary Grabinsky inherited from her parents, prior to her departure for this country from Europe, a sum of money; and if they further find from the evidence that she had at that time other money which she had earned whilst transacting business in her own name and on her own account; and if they further believe from the evidence that she brought with her to this country the fund thus inherited and thus earned and acquired by her, or any portion thereof, and that both before and after her arrival in the state of Missouri, by agreement or understanding between herself and her husband to that effect, she had previously held and continued to hold, manage, and use said fund or such portion thereof as she may have brought to this country, and the property in which it was invested as her individual property, free from the control of her said husband, then, as a matter of law, the court instructs you that said fund or such portion thereof as she may have brought to this country, so acquired, held, and used by her, was, and any property in which it was invested continued to be, her separate property as long as it was so held, managed, and used by her; and during such time was not subject to seizure or sale under execution as the property of her husband, or for the payment of his debts. And if the jury further find from the evidence that any of the property involved in this controversy and described in the bond sued upon was the separate property of Mrs. Mary Grabinsky, as hereinbefore supposed, at the time of the levy upon and sale of the same under executions against her husband, they will find for the plaintiffs the reasonable value of any such property at the time it was sold by the constable.” This instruction was appropriate to the evidence and was well warranted by decisions of the supreme court and of this court. McCoy v. Hyatt, 80 Mo. 130; The State ex rel. v. Chatham Nat. Bank, 80 Mo. 626; Kidwell v. Kirkpatrick, 70 Mo. 214; Bangert v. Bangert, 13 Mo. App. 144, 153, and other cases.

The second instruction complained of was given by the court under the following circumstances as recited by the record: “After the jury had retired to consider and were considering the said case, and being unable to agree without further instructions from the court as to the law of the case, the jury, by its foreman, presented the following written interrogatory to the court then in session, to-wit:

‘To the Hon. Judge Lubke: Are we to assume that the power of attorney given by Mary Grabinsky and placed upon record was sufficient notification in law to all persons, that the business carried on at No. 1017 North Seventh Street, under the name of M. Grabinsky, was Mary Grabinsky?

(Signed)

ELIJAH M. SAMPSON,

Foreman.'

Whereupon, the court of its own motion, while so still in session, without notice to defendants or their counsel, gave to the jury, after it had so retired, and...