Sutton v. Gilbert

Decision Date04 March 1946
Docket NumberNo. 20693.,20693.
Citation193 S.W.2d 928
PartiesSUTTON et al. v. GILBERT et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Buchanan County; Emmett J. Crouse, Judge.

Suit by Helen Sutton and others by George E. Brumbaugh, next friend and by George E. Brumbaugh and others, doing business as an unincorporated association under the name of National Defense Band of the United States, against Lee Gilbert and War Memorial Band, Inc., to recover personal property, or its value. From judgment for plaintiffs, defendants appeal.

Judgment affirmed.

"Not to be published in State Reports."

Horace Merritt, of St. Joseph, for appellants.

W. H. Sherman, of St. Joseph, for respondents.

SPERRY, Commissioner.

Plaintiffs claim to be, and to constitute, the National Defense Band of the United States, a voluntary unincorporated association, referred to herein as the Band. They sued Lee Gilbert and War Memorial Band, Inc., defendants, at law, for recovery of certain personal property, consisting of musical instruments, uniforms, music holders, chairs, music and music books, records, and money or, in lieu of the property, its alleged value, $1,650. Trial was to the court without aid of a jury, resulting in a general judgment for plaintiffs and against defendants, for almost all of the property sued for and enumerated in their petition, or its value, adjudged to be $1,519.50. Defendants have appealed.

The first fifteen plaintiffs listed in the caption hereof are infants and sue by next friend, George E. Brumbaugh. The last five are adults and constitute the advisory council of the Band according to the petition and the evidence.

The petition alleges that plaintiffs constitute the Band, a voluntary unincorporated association, organized and existing for the purpose of rendering band music, free of charge, to patriotic and other public gatherings and organizations; that said Band is the owner of the property therein described; that said association has no written constitution or by-laws by which it or its members are governed, but that the details of the management and control of the Band are left to its duly elected officers, to-wit: president, vice-president, manager, and advisory council; that it was the general understanding among members that property acquired by or given to the Band was its property, not that of any individual, and that it should be kept and used for the promotion and development of the Band; that Eloise Walker was president, Helen Sutton was vice-president, defendant Gilbert was business manager, and that plaintiffs Brumbaugh, Shewmaker, Hitch, Swope, and Ellingsworth constituted the advisory council; that the Band consists chiefly of high school boys and girls; that the property sued for was acquired from funds given to the Band by various individuals and organizations; that defendant Gilbert had organized a corporation, known as War Memorial Band, Inc. listing the property sued for as assets of said corporation, and as a basis for issuance of its capital stock; and that the band's officers and advisory council had demanded of defendants that possession of said property be delivered to its officers. They prayed judgment for return of the property or, in lieu thereof, a money judgment for $1650, the alleged value thereof.

Defendants filed motion to dismiss the petition for the following reasons:

"1. Because on the face of said petition the plaintiffs are not proper parties plaintiff.

"2. Upon the facts stated in said petition the plaintiffs have failed to state a cause of action, * * *."

The motion was overruled and that ruling is urged as error. The same questions presented in the motion will be hereafter considered.

Defendants filed answer in the nature of a general denial but also containing specific affirmative allegations. They denied that such an association as the National Defense Band of the United States ever existed; alleged that plaintiffs had no authority as business managers of the Band; alleged that defendant Gilbert "and his associates" organized and controlled the Band and that plaintiffs were permitted to play in it; denied that any of the parties mentioned in the petition ever were officers of the Band; alleged that Gilbert "and his associates" were the business managers of the Band; alleged that all donations were made to Gilbert "and his associates" and not to the Band; and alleged that said donations and the property mentioned in the petition belonged to Gilbert "and his associates," and not to the Band.

This case was tried under the new code. We will, therefore, review the case as in equity. Section 114, Subsection d, Laws Missouri, 1943, Mo.R.S.A. § 847.114(d), A. A. Electric Machinery Company v. Block, Mo.App., 193 S.W. 2d 631. We will weigh the evidence and finally dispose of the issues without remand, if reasonably possible to do so.

Plaintiffs' evidence tended to prove that there existed in St. Joseph, Missouri, for about one and one-half years prior to institution of this suit, a voluntary unincorporated association, known as National Defense Band of the United States; that the membership of said band consisted largely of high school boys and girls, and of the adult plaintiffs here suing, together with defendant Lee Gilbert; that it had, as its officers, the persons mentioned in the petition; that Gilbert was the duly elected business manager of the Band and had possession of the property sued for; that the adult plaintiffs and defendant Gilbert constituted the advisory council of the Band and, by custom and agreement governed the association in property matters and had control of the property; that one of its...

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7 cases
  • Prestigiacamo v. Am. Equitable Assur. Co.
    • United States
    • Missouri Court of Appeals
    • April 4, 1949
    ...Trippe, Hale Houts and Hogsett, Trippe, Depping & Houts for appellants. The case is to be reviewed as a suit in equity. Sutton v. Gilbert, Mo. App., 193 S.W. 2d 928, 929; Davidson v. Eubanks, Mo. Sup., 189 S.W. 2d 295, 296; Rinkel v. Lubke, 246 Mo. 377, 392, 152 S.W. 81; Sec. 114(d), Civil ......
  • Prestigiacamo v. American Equitable Assur. Co. of N. Y.
    • United States
    • Kansas Court of Appeals
    • April 4, 1949
    ...to the trial court's opportunity to judge the credibility of the witnesses. Sec. 114 (d), Laws of Mo., 1943, p. 388; Sutton v. Gilbert, 193 S.W. 2d 928 (Mo. App.); Wagner v. Mederacke, 195 S.W. 2d 108, 114 App.); Johnson v. Frank, 354 Mo. 767, 191 S.W. 2d 618. Latent ambiguity can be raised......
  • Michigan Fire Ins. Co. v. Magee, Etc.
    • United States
    • Missouri Court of Appeals
    • February 7, 1949
    ...a judgment for such amount and discharging plaintiff as to all other defendants. Section 14(d), Civil Code of Missouri; Sutton v. Gilbert, Mo. App., 193 S.W. 2d 928, 929. James E. Campbell, Wherritt & Sevier and Harry A. Hall for (1) Julia Magee's interest as administratrix entitled her to ......
  • Michigan Fire & Marine Ins. Co. v. Magee
    • United States
    • Kansas Court of Appeals
    • February 7, 1949
    ... ... giving her a judgment for such amount and discharging ... plaintiff as to all other defendants. Section 14(d), Civil ... Code of Missouri; Sutton v. Gilbert, Mo. App., 193 S.W. 2d ... 928, 929 ...          James ... E. Campbell, Wherritt & Sevier and Harry A. Hall for ... ...
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