Vermillion v. Parsons

• Decision Date: 24 April 1906
• Citation: 94 S.W. 298,118 Mo. App. 260
• Parties: VERMILLION v. PARSONS (PARSONS, Interpleader).
• Court: Missouri Court of Appeals

94 S.W. 298

118 Mo. App. 260

VERMILLION v. PARSONS (PARSONS, Interpleader).

St. Louis Court of Appeals. Missouri.

April 24, 1906.

1. TRIAL—CONFLICTING INSTRUCTIONS.

Giving two instructions as to the burden of proof, one correctly qualified, the other not, is error.

2. EVIDENCE—DECLARATIONS OF THIRD PARTY.

Declarations of defendant, in an attachment suit, that the attached property was his, not made in the presence of his wife, who intervenes, claiming the property as hers, are not admissible against her.

3. ATTACHMENT — INTERVENTION — DIRECTION FOR INTERPLEADER.

The undisputed evidence, on the trial of an interplea in an attachment suit, being that part of the attached property belonged to third persons and had by them been placed in the hands of interpleader to be taken care of by her, there should be a direction to find for her as to such articles.

Appeal from Circuit Court, Barry County; Henry C. Pepper, Judge.

Action by J. U. Vermillion against L. C. Parsons, in which Mrs. L. C. Parsons interpleaded, claiming the attached property. From an adverse judgment, interpleader appeals. Reversed and remanded.

Davis & Steele, for appellant. D. H. Kemp, for respondent.

BLAND, P. J.

This is the third appeal of this case. The facts of the case and the law governing it will be found in opinions filed on the former appeals, in 101 Mo. App. 602, 73 S. W. 994, and 107 Mo. App. 192, 80 S. W. 916. On the last trial, the court, and counsel for plaintiff, either overlooked or misinterpreted the rulings of this court on the former appeals, and repeated several errors that occurred on the previous trials which were pointed out in the former opinions. The following are the principal ones: First. The evidence tends to show that the attached property claimed by the interpleader was in her possession, and the court correctly instructed the jury, for interpleader that, if they found she was in possession of the property, the burden of proof was on the plaintiff; but in an instruction given for defendant (No. 3) the court told the jury, without qualification, that the burden of proof was on the interpleader. Second. The court admitted declarations of interpleader's husband, not made in her presence, that he was the owner of the property. Third. Plaintiff's first instruction is without any substantial evidence to support it and should have been refused. Fourth. Too wide a scope was given to the cross-examination of the interpleader, in respect to the declarations...