Van Nort v. Van Nort

• Decision Date: 07 May 1929
• Docket Number: No. 20145.,20145.
• Citation: 16 S.W.2d 643
• Parties: VAN NORT v. VAN NORT.
• Court: Missouri Court of Appeals

16 S.W.2d 643

VAN NORT v. VAN NORT.

No. 20145.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Irene Van Nort against W. H. Van Nort and another, wherein plaintiff took an involuntary nonsuit as to such other defendant. Judgment for plaintiff, and named defendant appeals. Affirmed.

Wilfred Jones, of Clayton, for appellant.

S. E. Eaken, of St. Louis, for respondent.

BECKER, J.

Plaintiff brought her suit for malicious prosecution against her brother, William H. Van Nort, and her sister, Eda Van Nort. At the trial, at the close of plaintiff's case, plaintiff took an involuntary nonsuit as to defendant Eda Van Nort, and the trial proceeded to judgment against the defendant William H. Van Nort. The jury found a verdict for plaintiff for $250 actual damages and $1,000 punitive damages. The defendant William H. Van Nort in due course appeals.

Defendant, appellant here, concedes the following facts: That his mother and his sister, Eda Van Nort, lived together in a small home owned by the mother at Sullivan, Mo. Plaintiff, who had been living out West for a number of years, returned to the said home in March, 1925, and lived with the mother and sister up until the time of her arrest, on September 8, 1925.

On September 2, 1925, the defendant William H. Van Nort, who was living in the city of St. Louis, was informed that his sister, Irene, had committed a common assault on his sister, Eda, at the family home at Sullivan, Mo.; that he immediately went to Sullivan, and, after three or four days' consideration of the conditions at the home between the plaintiff and his sister, Eda, and after consulting with the town marshal, the township constable, the justice of the peace, and the prosecuting attorney, the defendant went before a justice of the peace and swore to a complaint in the conventional statutory form, charging that plaintiff had made assault on Eda Van Nort by striking her. On this complaint the prosecuting attorney issued his information charging plaintiff with a misdemeanor, and a warrant for the arrest of plaintiff was issued by a justice of the peace and served upon plaintiff by the sheriff of Franklin county, Mo.; that her arrest took place between 8 and 9 o'clock at night on September 8, 1925, and plaintiff was at once taken before the justice, where she pleaded not guilty and her trial set for hearing on September 12th; that in lieu of a bond, on a commitment from the justice, plaintiff was taken 20 miles to Union, Mo., and lodged in the county jail there, where she remained from about 10 o'clock on the night of September 8th until the morning of September 12th, at which time she was released at the request of said defendant William H. Van Nort, and the case against plaintiff dismissed and the costs of the prosecution paid by the said defendant.

The sole question here for our review is whether or not plaintiff made out a case for the jury. From a reading of the record we hold that the trial court properly ruled the demurrer offered at the close of the case.

The appealing defendant here seriously urges that, considering the testimony of all of the witnesses, under the greater weight of the evidence plaintiff stands impeached as a witness; that Eda Van Nort testified that on September 2d, plaintiff slapped her on the side of the face "just as hard as she could"; that the town marshal came to the home at her request and talked to her sister, plaintiff, Irene; that on the following morning the defendant William H. Van Nort arrived from St. Louis in response to a telegram sent from Sullivan by a brother-in-law; that upon William arriving at the home, Irene retired to her room and remained therein from that day, September 3d, until the evening of September 8th, when she was arrested by the sheriff, during which period of time she left the room only at night to get something to eat, and that at a time when the rest of the family had retired. This witness, Eda Van Nort, further testified that she did not have her sister arrested; that she did not tell her brother to do so, and in fact did not want to have her sister arrested.

The defendant William H. Van Nort testified that he is at present engaged in the real estate business; that he practiced law for a number of years and was in fact prosecuting attorney of Iron county for one term. He stated: That when he arrived at Sullivan, in response to the telegram from his brother-in-law, he saw that the side of the face of his sister Eda was very red, and his sister Irene was upstairs in her room and her door was locked. She remained there all the time he was at the house. That after his sister had been arrested, upon his complaint, and she had been taken before the justice, the sheriff tried to get her to give bond, but that she absolutely refused to give bond and insisted upon going to jail. That his sister was finally released from custody at his request, and the charge dismissed upon his paying the costs.

On cross-examination he testified that when his sister refused to give bond he did not offer to give bond himself personally, and that he had requested the release of his sister, as he did not want the record to show that she had been guilty of crime.

A neighbor, Fannie Martin, testified that on the day in question she heard Eda Van Nort cry out, and that she noticed the appearance of her cheek that morning; that her face was red on one side.

The sheriff testified, as to his making the arrest, that plaintiff refused to give bond and that he had offered to pay her expenses if she would go to the hotel; that plaintiff remained in the jail from the evening of September 8th until the morning of the 12th; that during that time there was another woman in the women's side of the jail who was held for observation as to her sanity; that this "insane woman was in the jail two or three days while Irene was there."

We readily concede that the testimony outlined above was adduced in...