State ex rel. Johnson v. True

• Decision Date: 04 January 1886
• Citation: 20 Mo.App. 176
• Parties: THE STATE OF MISSOURI EX REL. MARY E. JOHNSON, Respondent, v. VIRGIL TRUE ET AL., Appellants.
• Court: Kansas Court of Appeals

20 Mo.App. 176

THE STATE OF MISSOURI EX REL. MARY E. JOHNSON, Respondent, v. VIRGIL TRUE ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

January 4, 1886

APPEAL from Linn Circuit Court, HON. G. D. BURGESS, Judge.

Affirmed.

The case and facts are sufficiently stated in the opinion of the court.

H LANDER and S. P. HUSTON, for the appellants.

I. The petition and all the testimony show that if Mary E. Johnson had any interest in the property, it was undivided. In such case she could not alone maintain the suit. Bliss on Code Pleading, sects. 61, 62; 2 Barbour on Parties (2 Ed.), sect 2, p. 266; Brown on Parties, 209; Little v Harrington, 71 Mo. 391. This is an action in contract on the bond. In such case the objection may be made at the trial, without pleading it. Smoot v. Wathen, 8 Mo. 525.

II. The obligation sued on is a joint one, and all must join in a suit to recover. The bond is six hundred and thirty-five dollars. Different claimants could not recover beyond that sum, yet a recovery by one would be no bar nor measure for the recovery by another. In such cases all must join, not as a formal matter of pleading, but because non-joinder goes to the merits of the whole case. Robbins v. Ayres, 10 Mo. 538; Dewy v. Cary, 60 Mo. 225; Clark v. Cable, 21 Mo. 223; Fowler v. Kennedy, 2 Abb. 347.

III. Plaintiff's first instruction is erroneous. It does not cover the whole case, nor even submit the question of fraud. So is his second instruction, since it submits sale and control instead of possession, and was calculated to, and did mislead the jury. It was also omitted requiring that the " control " (or possession), should be continuous thereafter.

IV. In cases where sales are made by a parent to a child, fraud is presumed, and the burden is on the beneficiary to establish " good faith." It is a badge of fraud. Goldsby v. Johnson, 85 Mo. ________

A. W. MULLINS, for the respondents.

I. The suit was properly brought. The bond was given under the provisions of section 2366, Revised Statutes. Stewart v. Thomas, 45 Mo. 42; State to use, etc., v. Morton, 18 Mo. 53. And again, bonds of this character are embraced within section 590, Revised Statutes, and any person aggrieved, * * * may prosecute a suit thereon, whether joined or not with other persons also interested therein. And subsequent suits may, also, be brought on such bonds. Ample provision is made in the statute for the protection of securities, * * * beyond the amount of the penalty of the bond. Sects. 585, 589, p. 92.

II. The defendants cannot now be heard on the question of defect of parties. They neither raised that question by demurrer nor by answer in the trial court. It was, therefore, waived. Section 3519, Rev. Stat.; Walker v. Deaver, 79 Mo. 664; State to use, etc., v. Sappington, 68 Mo. 454; R. R. Co. v. Anthony, 73 Mo. 431.

III. The instructions given by the court, taken as a whole, presented the issues to the jury in a very favorable manner to the defendants. They must be regarded together. Karle v. R. R. Co., 55 Mo. 476; Noble v. Blount, 77 Mo. 235; Moore v. R. R., 73 Mo. 438; McKeon, 43 Mo. 405.

IV. It is not the law, that " where sales are made by a parent to a child, fraud is presumed, and it is not a badge of fraud." " Relationship is not a badge of fraud." Bump on Fraud. Con. (3 Ed.) 56, and cases cited.

PHILIPS P. J.

The sheriff of Linn county, under execution, seized certain personal property, consisting of farm products, as the property of James Johnson. Claim being made thereto by Mary E. Johnson, daughter of the said James, the sheriff took from the plaintiff in execution the statutory bond. This action is instituted on said bond in the name of the state, at the relation of said Mary, to recover the value of the property so taken. The petition alleged that the property belonged to said Mary and one Samuel Johnson, absolutely, as tenants in common, the interest of claimant being an undivided one-half.

The answer denied ownership in claimant, and further pleaded that the property, in fact, belonged to said James Johnson, and that the claim of Mary was fraudulent, the sale made to her by said James being in fraud of the rights of the creditors of said James.

Judgment was recovered by plaintiff, and the defendants have appealed.

I. The principal error relied on for a reversal of this judgment is the assumption that Mary Johnson, to whose use this action is brought, is a joint owner with Samuel Johnson in the property, and, therefore, the action cannot be maintained without said Samuel being joined as co-plaintiff.

Waiving any discussion of the fact that the obligation sued on is made to the state of Missouri as the obligee, and that the state sues as the trustee of an express trust, and also waiving any discussion of the provisions of the statute which authorize any person injured to maintain suit on the obligation, it is a sufficient answer to appellant's contention that the code of practice (section 3519, Revised Statutes), expressly provides that when a defect of the character in question appears on the face of the petition, advantage thereof shall be taken by demurrer; and if the same does not so appear, the objection shall be taken by answer. But if no such objection is thus taken, " the defendant shall be deemed to have waived the same." This has been the uniform construction of this provision by the supreme court. See authorities collected in Walker v. Deaver et al., 79 Mo. 672. This precise question arose in Thompson v. Ry. Co. (80 Mo. 521), a case quite parallel, in principle, with this. The court says: " The only advantage which can be taken of the non-joinder upon the trial is by way of apportionment of the damages. It is not ground for a reversal."

The defendants, neither by demurrer nor answer, raised the question of the non-joinder in the lower court. The objection cannot, therefore, avail the appellants on appeal.

II. Complaint is made of the action of the court in giving instructions for plaintiff. The objection to the first instruction is, that it did not submit to the jury the whole of the issues arising on the evidence and pleadings. This objection would be well taken had there been no instructions given predicated of the defendant's proof. But the court very fully submitted the other questions in the case in instructions given on behalf of defendants. Instructions must be regarded as a whole, and if considered together as a series they are not calculated to mislead, " a mere conclusion based on the ground that they are not all embraced in a single instruction cannot avail the plaintiff in error as a ground of reversal." Brown v. Ins. Co., 68 Mo. 133; Parton v. McAdoo, 68 Mo. 327; Karle v R. R. Co., 55 Mo. 476; Noble v. Blount, 77 Mo. 235,...