Wilson et al. v. Caulfield, 22535.

• Decision Date: 06 February 1934
• Docket Number: No. 22535.,22535.
• Parties: BESSIE WILSON, CHARLOTTE LOUISE HOWARD, CORA M.B. JACKSON, EDGAR L. BRUSSMAN AND CLARENCE J. BRUSSMAN, PLAINTIFFS (RESPONDENTS), v. EUGENE JOSEPH CAULFIELD, ALIAS BERT J. FRANCIS, DEFENDANT (APPELLANT).
• Court: Missouri Court of Appeals

67 S.W.2d 761 BESSIE WILSON, CHARLOTTE LOUISE HOWARD, CORA M.B. JACKSON, EDGAR L. BRUSSMAN AND CLARENCE J. BRUSSMAN, PLAINTIFFS (RESPONDENTS),
v.
EUGENE JOSEPH CAULFIELD, ALIAS BERT J. FRANCIS, DEFENDANT (APPELLANT). No. 22535. St. Louis Court of Appeals. Missouri. Opinion filed February 6, 1934. Motion for rehearing overruled February 21, 1934. Certiorari denied by Supreme Court April 18, 1934.

Appeal from the Circuit Court of the City of St. Louis. — Hon. M. Hartmann, Judge.

REMANDED.

Cobbs & Logan and Frank H. Haskins for appellant.

(1) The order granting a new trial is properly reviewable by this court on appeal. Appeal, not writ of error, is the proper method. Sec. 1018, R.S. 1929; State ex rel. v. Falkenhainer, 296 S.W. 386, l.c. 388; Padgett v. Smith, 205 Mo. 122, l.c. 124; Kroeger v. Dash, 82 Mo. App. 332, l.c. 333; Ormiston v. Trimbo, 77 Mo. App. 310, l.c. 314. (2) The trial court erred in granting a new trial because, under the pleadings and evidence in this case, respondents had no standing or right to attack the adoption of appellant by Nettie R. Francis. The decree of adoption was not void because appellant was more than twenty-one years old at the time of his adoption. State ex rel. Buerk v. Calhoun, 52 S.W. (2d) 742. (3) Respondents, having no vested interest at the time of the adoption, could not attack the decree of adoption on the ground that it was voidable for undue influence or otherwise. Adoption, like marriage, is a civil contract recognized and regulated by statute. Holloway v. Jones, 246 S.W. 587, l.c. 590; In re Hughes, 213 Pac. 69. (4) A voidable adoption, like a voidable marriage, can be set aside only in a suit brought by one having a vested interest at the time of the adoption or marriage. Henderson v. Henderson, 165 Mo. 718, 178 S.W. 175, l.c. 177, 178; In re Guthery's Estate, 226 S.W. 626, l.c. 627; Pepin v. Meyer, 163 Pac. 104; Gray v. Gardner, 81 Me. 554, 18 Atl. 286; Nugent v. Powell, 4 Wyo. 173, l.c. 187, 33 Pac. 23; Abington v. Townsend, 197 S.W. 253, l.c. 256; Nichols v. Robinson, 211 S.W. 14, l.c. 15; LaRue v. LaRue, 317 Mo. 207, 294 S.W. 723, l.c. 726. (5) Respondents had no vested interest in the estate of Nettie R. Francis at the time she adopted appellant, nor did they acquire any interest therein at her death, and consequently have no standing to maintain this suit. (6) Respondents' suit, actuated solely by pecuniary motives, is without equity. Henderson v. Henderson, 165 Mo. 718, 178 S.W. 175, l.c. 178; In re Guthery's Estate, 226 S.W. 626; Wolf's Appeal, 13 Atl. 760; Mullany's Adoption, 25 Pa. Co. Ct. 561; Brown's Adoption, 25 Pa. Super. Ct. 259; Pugh v. Cox, 200 N.W. 686; In re McKeag's Estate, Smith-Moxley v. Teass, 74 Pac. 1039; Scott et al. v. Peters, 158 N.E. 490; Re Ward, 112 N.Y. Supp. 282. (7) The trial court erred, after deliberately entering a decree for appellant, in granting a new trial to respondents, because his original decree was the only one justified by the record in this case. The scope of and the rules governing the review by this court. Brueckle v. Pechan, 21 S.W. (2d) 903, l.c. 906; Linneman v. Henry, 316 Mo. 674, 291 S.W. 109, l.c. 113; Hanne v. Walters, 47 S.W. (2d) 182, l.c. 188; City Ice & Fuel Co. v. Snell, 57 S.W. (2d) 440, l.c. 442. (8) The issues and evidence, on which this case was submitted to the trial court, show that the original decree of the trial court was the only one which could or can ever be entered in this case. The charge, in the amendment to the petition, that the statutes of Missouri do not permit the adoption of an adult is conclusively disposed of by the Supreme Court of this State. State ex rel. Buerk v. Calhoun, 52 S.W. (2d) 742. (9) The charge in the petition that the mind of Mrs. Francis was "weak and unbalanced" and that appellant and Scott, by "undue influence" caused her, against her will, to sign the petition for the adoption of appellant, was not supported by any substantial evidence. Van Raalte v. Graff, 253 S.W. 220, l.c. 223; Teckenbrock v. McLaughlin, 209 Mo. 533, l.c. 550, 551, 108 S.W. 46; Gibony v. Foster, 230 Mo. 106, l.c. 122, 136, 137, 130 S.W. 314; Lorts v. Wash, 175 Mo. 487, l.c. 502; Berst v. Moxom, 157 Mo. App. 342, l.c. 352, 353; Crowson v. Crowson, 172 Mo. 691, l.c. 702, 703; Beckmann v. Beckmann et al., 52 S.W. (2d) 818, l.c. 823; Webster v. Leiman, 44 S.W. (2d) 40. (10) There is no substantial evidence in this case that any undue influence was practiced or exercised or actively operating upon the mind or will of Mrs. Francis at the time she executed the petition for the adoption of appellant, or at the time his adoption was decreed, or at any other time. Van Raalte v. Graff, 253 S.W. 220, l.c. 223; Teckenbrock v. McLaughlin, 209 Mo. 533, l.c. 550, 551, 108 S.W. 46; Gibony v. Foster, 230 Mo. 106, l.c. 122, 136, 137, 130 S.W. 314; Lorts v. Wash, 175 Mo. 487, l.c. 502; Berst v. Moxom, 157 Mo. App. 342, l.c. 352, 353; Crowson v. Crowson, 172 Mo. 691, l.c. 702, 703; Beckmann v. Beckmann et al., 52 S.W. (2d) 818, l.c. 823; Webster v. Leiman, 44 S.W. (2d) 40.

Foristel, Mudd, Blair & Habenicht for respondents.

(1) This suit by plaintiffs, as next of kin of the deceased adoptive parent, to set aside an adoption wrongfully procured, is authorized by law. Tucker v. Fisk, 154 Mass. 574, 28 N.E. 1051; Raymond v. Cooke, 226 Mass. 326, 115 N.E. 423; Phillips v. Chase, 203 Mass. 556, 89 N.E. 1049; Stevens v. Halstead, 168 N.Y. Supp. 142; Platt v. Magagini, 110 Wash. 39, 187 Pac. 716; Green v. Fitzpatrick, 220 Ky. 590, 295 S.W. 896. (2) The pending suit to contest the 1930 will "... destroys the present efficacy of the mere formal probate in the probate court. To all intents and purposes it is thereby vacated and there is left a mere writing or scroll, but no will, until such time as it is proved anew in the contest proceeding." State ex rel. Ashton v. Imel, 243 Mo. 180, l.c. 186. (3) Furthermore, the alleged defense that plaintiffs not legal capacity to sue was not raised by demurrer (R.S. 1929, Sec. 770) specifying it as required by law (R.S. 1929, Sec. 771), nor by answer (R.S. 1929, Sec. 774), and therefore is waived (R.S. 1929, Sec. 774). Bulkley v. Big Muddy Iron Co., 77 Mo. 105, 107; State ex rel. v. Cox, 318 Mo. 387, 395; Scrivner v. American Car & Foundry Co., 330 Mo. 408, 441, and cases cited. (4) The record presented here does not authorize or permit a review of the sufficiency or weight of the evidence, because: Appellant's abstract shows, and the additional abstract confirms, that all the evidence is not contained in those abstracts of record. Aulgur v. Strodtman, 329 Mo. 738, 46 S.W. (2d) 172. (5) Appellant's abstract gives the testimony as a narrative of counsel, and not of the witnesses, as required by law. Euler v. State High. Com. (Mo. App.), 55 S.W. (2d) 719. (6) Appellant omitted all objections and exceptions of respondents' counsel, which are required to review the order granting a new trial. (See Add. Abs., pp. 63 and 64.) The appellant from an order granting a new trial must include the respondents' objections and exceptions to permit respondents to show that the order granting a new trial was proper for reasons not assigned by the court. State ex rel. Hartman v. Thomas (banc), 245 Mo. 65, 149 S.W. 318. (7) Filing the additional abstract to show inadequacy of appellant's abstract is authorized and proper. Aulgur v. Strodtman, 329 Mo. 738, 46 S.W. (2d) 172. (8) And the appellate court will presume that omitted evidence sustained the decision below. Euler v. State High. Com. (Mo. App.), 55 S.W. (2d) 719. (9) The court granted the new trial on the weight of the evidence, which is discretionary. This court will not interfere with the trial court's exercise of discretion in granting one new trial on the weight of the evidence. Hurley v. Kennally, 186 Mo. 225; King v. Mann, 315 Mo. 318, 326; Riche v. St. Joseph, 326 Mo. 691, 695. (10) Since there are serious irreconcilable conflicts of testimony, the trial court had absolute discretion to grant a new trial on the weight of the evidence. This court, not having seen and heard the witnesses testify, will not review the evidence. Hurley v. Kennally, 186 Mo. 225; Fishback v. Prock, 242 S.W. 962, 966; Pressy v. Slezak, 278 S.W. 382, 386. (11) On appeal from a final decree in equity, the findings of fact of the trial judge are not conclusive on the appellate court, but are given consideration and weight. Where the testimony is given orally in person before the trial judge (as in the present case), his findings of fact on conflicting testimony are usually given almost conclusive effect because of his superior opportunity to determine the credibility of the witnesses. Fishback v. Prock, 242 S.W. 962, 966; Pressy v. Slezak, 278 S.W. 382, 386. (12) Should this court review the conflicting evidence and determine the weight of the evidence, it would be an exercise of original rather than appellate jurisdiction. The trial judge has not reached a final decision on the facts, to operate advisorily or be reviewed. The parties are entitled to a trial judge's considered, final, unretracted decision before and on the appellate review of the merits of a suit in equity. The law does not contemplate or authorize an appellate determination of the weight and sufficiency of the evidence in an equity case before the trial judge has reached a final conclusion thereon. Hurley v. Kennally, 186 Mo. 225; Fishback v. Prock, 242 S.W. 962, 966; Pressy v. Slezak, 278 S.W. 382, 386; (Arguendo) Granite Bituminous Paving Co. v. Park View Realty Co., 270 Mo. 698. (13) On a new trial, as ordered by the court below, each party is entitled to, and the law requires, a complete rehearing of evidence de novo. Hurley v. Kennally, 186 Mo. 225; Granite Bituminous Paving Co. v. Park View Realty Co., 270 Mo. 698. (14) A retrial will undoubtedly establish more clearly whether the plaintiffs or defendant should prevail; and will remove the obvious uncertainty in the mind of the trial...