Vazis v. Zimmer

• Decision Date: 01 March 1919
• Docket Number: No. 19799.,19799.
• Citation: 209 S.W. 909
• Parties: VAZIS v. ZIMMER.
• Court: Missouri Supreme Court

209 S.W. 909

VAZIS v. ZIMMER.

No. 19799.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

Action in probate court by Frank Vazis against Anton Zimmer. From judgment for plaintiff, defendant appealed to the circuit court, and from judgment there rendered for plaintiff defendant appeals. Reversed and remanded.

Frank Vazis, the respondent, who is the son and heir of Agnes Zimmer, deceased, commenced this action in the probate court of the city of St. Louis, Mo., on February 17, 1915, under the provisions of sections 70 to 73, both Inclusive, of the Revised Statutes of 1909 of Missouri, by the filing of an affidavit, in which the defendant, Anton Zimmer, was charged with concealing and wrongfully withholding certain moneys, papers, evidences of indebtedness, and other personal property belonging to the estate of said Agnes Zimmer, deceased, and citing him to appear before said court and answer under oath touching the discovery of said property, charged to be in the possession of defendant, estimated to be of the value of $20,935.

The allegation of the affidavit not having been admitted by defendant to be true, he was ordered by said court, as provided in section 71, supra, to be examined under oath, and, having denied any wrongful withholding of said property described in the affidavit of respondent, interrogatories in writing were filed, which were answered in writing by said Anton Zimmer, after which, at the instance of the administrator de bonis non of the estate of said Agnes Zimmer, deceased, other witnesses were examined, both for and against defendant, in accordance with said section 71.

A jury was waived, and the probate court found defendant guilty of wrongfully withholding the principal notes mentioned in the affidavit, as well as other property mentioned therein, of the aggregate value of about $12,350, belonging to the estate of said Agnes Zimmer, deceased. Defendant appealed to the circuit court of said city, where, on a trial de novo before Judge Anderson, on March 1, 1916, defendant was convicted of wrongfully withholding the property aforesaid, and judgment was rendered in accordance with the findings of the jury.

Said judgment recites, among other things:

                  "That the total amount of moneys wrongfully
                    withheld by the defendant from
                    his said wife, and from her personal
                    representatives, is the sum of ............. $ 7,100 00
                  "And that interest on said amount, compounded
                    annually at the rate of 6 per
                    cent. per annum, during the period of
                    said wrongful withholding, amounts to          5,615 00
                                                                ___________
                  "Making a total of principal and interest
                     of .......................................   $12,715 00"
                

The court found in its judgment that said last-mentioned sum is represented by the notes of certain persons described therein which aggregate $12,350, and which were at the death of said Agnes Zimmer in the possession of defendant.

The above judgment found defendant guilty of wrongfully and illegally withholding all of said property; directed him to deliver same to Joseph Herber, administrator, etc., of the estate of Agnes Zimmer, deceased; and adjudged that defendant should pay all the costs of said proceeding, etc.

An appeal was granted defendant to this court. His death was suggested here, and the cause revived in the name of Curt Pampel, executor of his last will and testament.

In order to avoid repetition, the evidence, and such facts as we may deem important, will be considered in the opinion.

Wm. T. Keil, S. E. Eaken, and Geo. E. Mix, all of St. Louis, for appellant.

Charles Erd, Loren E. Massey, and Robert A. Thomann, all of St. Louis, for respondent.

BAILEY, C. (after stating the facts as above).

I. It is insisted by appellant that the trial court erred in overruling defendant's motion for the appointment of a referee. The abstract of record does not show that any exception was saved in respect to said ruling, nor does the motion for a new trial, filed by defendant, assign as error the above ruling of the court. In view of the foregoing, the action of the court in refusing to appoint a referee cannot be reviewed here.

II. It is contended by appellant that the matters in controversy here were barred by the statute of limitations prior to the death of Agnes Zimmer, which occurred on November 30, 1914.

Plaintiff's evidence tends to show that Anton Zimmer, while a resident of Illinois, received the proceeds of the sale of lands held by said Zimmer and his wife as tenants in common, amounting to $11,000, in February, 1904; that during the year 1904 said Anton Zimmer received the proceeds of the sale of personal property in Illinois amounting to $2,761.45, which belonged to himself and wife as tenants in common. Plaintiff offered in evidence sections 7, 9, and 10 of chapter 68 of the Revised Laws of Illinois for 1909, which authorized the wife to sue the husband as though they were not married, if he unlawfully retained possession of her property. It is claimed by appellant, and the record shows, that no suit was ever brought by Agnes Zimmer prior to her death in November, 1914, against her husband, for the moneys aforesaid, or any part thereof.

Counsel for appellant, in support of their contention that plaintiff's cause or causes of action are barred by limitations, cite Rosenberger v. Mallerson, 92 Mo. App. 27.

As counsel for defendant failed to plead the statute of limitations, or to raise the question in any other manner at the trial, and as no instruction was asked or given in respect to same, we are not at liberty to consider or pass upon this question.

III. Appellant complains of the action of the trial court in refusing to give his instruction, which reads as follows:

"That if you believe from the evidence that the defendant, Anton Zimmer, did not use the money given to him by the deceased, Agnes Zimmer, if any, in the purchase of the deeds of trust, chattel mortgages, and notes introduced in evidence, but that said sums represented by said deeds of trust, chattel mortgages, and notes were furnished by the defendant, Anton Zimmer, and was wholly his money at said time, then your verdict must be for the defendant, Anton Zimmer."

An exception was duly saved to the action of the court in refusing this instruction. The defendant was entitled to same based on his own testimony as well as the weakness of that produced by plaintiff. If this instruction had been given, and the jury had found the facts in favor of defendant as indicated therein, it would have precluded a recovery upon the part of plaintiff. It was not suffident for the latter to show that Anton Zimmer, in February, 1904, received the above money in Illinois, which belonged to himself find wife, as tenants in common, but in order to have any part of the property in defendant's possession impounded for the payment of this indebtedness it was necessary for plaintiff to show that some part of the money held by Zimmer as tenant in common for his wife was represented by said notes or other property. In other words, it devolved upon plaintiff to show that the money of Agnes Zimmer, or some portion thereof, was traced into said property, which is sought to be turned over to the administrator of the estate of Agnes Zimmer, deceased.

Anton Zimmer, when offered as a witness, testified without objection as to all the facts in the case. Counsel for plaintiff at the trial said in open court:

"I think Zimmer is made a competent witness under the statute in a proceeding of this character."

There was substantial evidence offered by defendant tending to show that Agnes Zimmer had no interest in the property sought to be turned over, nor that any of her money entered into same. The principles of law contained in this instruction were not covered by any other declaration of law given at the instance of defendant. It was based 'upon defendant's evidence, stated the law correctly as applied to same, and should have been given. Carmody, Adm'r, v. Carmody, 266 Mo. loc. cit. 565, 566, 181 S. W. 1148; Chandler v. Hedrick, 187 Mo. App. loc. cit. 669, 173 S. W. 93, and following.

IV. Appellant challenges the correctness of one of plaintiff's main instructions, which read as follows:

"And if the jury believe from the evidence that said farm lands were sold and conveyed to Warner Rull by defendant and his said wife on or about February 20, 1904, and that on such sale and conveyance defendant received the sum of $11,000 as the consideration for the conveyance of said lands, and if you further believe from the evidence that no part of said consideration was required or used by defendant for the payment and satisfaction of any mortgage indebtedness, or other lien upon or against said lands or any part thereof, then defendant became a trustee for his said wife, Agnes, of one-half of the amount paid to him for said lands, to wit, the sum of $5,500; and if the jury further believe from the evidence that Agnes Zimmer, defendant's said late wife, never gave her consent in writing to the use of said last-named sum, nor the interest which might accrue thereon, by defendant, and that notwithstanding the absence of such consent defendant retained the control and possession of said sum of $5,500, and that defendant never accounted to his said wife during her lifetime for said last-mentioned sum of money nor any part thereof, nor the interest thereon nor any part thereof, and that since the death of his said wife defendant has failed, neglected, and refused to account for said sum of money and all interest thereon to the estate of defendant's said deceased wife or her personal...