Summary
In Davis v. Johnson, 332 Mo. 417, 423(8), 58 S.W.2d 746, 748-9(9), decided in 1933, the interrogatories related (quoting substantially) to money or other personal property in possession, and if not, to the disposition made thereof.
Summary of this case from State ex Rel. Lipic v. FlynnOpinion
March 16, 1933.
1. PRACTICE: New Trial: Weight of Evidence. Where the trial court sustained a motion for a new trial which assigned, among other grounds, that the verdict was against the weight of evidence, it may be assumed that the court ruled on the weight of evidence.
2. APPEAL AND ERROR: Specification of Error: Rule Fifteen. Where a complaint, on appeal, of misleading instruction or insufficient evidence, is not followed by directing attention to the particular fault in the instruction or the ground of the insufficiency of the evidence, there is no compliance with Rule 15 of the Supreme Court.
3. PRACTICE: New Trial. Under Section 1001, Revised Statutes 1929, a trial court has a broad discretionary power to grant a new trial on the ground that a verdict is against the weight of evidence and such court should not be convicted of error in granting a new trial on that ground unless the order was erroneous on another ground.
4. ADMINISTRATION: Discovery of Assets. A proceeding in the probate court to discover assets under Sections 63-66, Revised Statutes 1929, is a quick method not only of bringing property into the estate but also to expedite the administration of the estate by affording a new and special remedy of collecing assets.
5. ADMINISTRATION: Probate Courts: Discovery of Assets. A probate court is a court of record and a proceeding to discover assets of an estate is an action at law, cannot be maintained on purely equitable ground and is exclusively cognizable by the probate court as of first instance, save only in exceptional cases.
6. ADMINISTRATION: Discovery of Assets. In a proceeding to discover assets under Section 66, Revised Statutes 1929, judgment shall be rendered according to the finding by the court or jury of the issues upon interrogatories and answers thereto and such judgment must be responsive to the issues.
7. ADMINISTRATION: Discovery of Assets: Personal Representative of Defendants. In a proceeding to discover assets, where the trial court found that the defendants received certain money and other personal property belonging to deceased testator, withheld and converted the same in an amount and value shown, the court could render judgment in accordance with the finding, against the administrator of the deceased original defendants, against which administrator the case was revived, and such judgment would determine the amount in which the estates of the deceased defendants were indebted to the estate of the testator and could be filed and presented in the probate court to be classified against the estates of the deceased defendants.
8. ADMINISTRATION: Discovery of Assets: Specific Property. In a proceeding to discover assets, if the court found that specific property was withheld and was among the chattels of the defendants at their deaths, and it was afterwards in possession of their administrator, against whom the case was revived, a trial might be had in which the title to such property could be determined, and, upon the refusal of the personal representative to deliver the same, a judgment for value thereof entered as for a conversion, or other judgment suitable to the finding and not involving the commitment applicable to the original defendants under Section 66, Revised Statutes 1929.
9. ADMINISTRATION: Discovery of Assets: Replevin, Etc. In a proceeding to discover assets, where the original defendants charged with withholding such assets have died and the cause revived against their administrator, a judgment determining the issues presented is the available remedy, for neither replevin nor trover and conversion will lie.
Appeal from Pemiscot Circuit Court. — Hon. John E. Duncan, Judge.
AFFIRMED AND REMANDED.
McKay Peal for appellants.
The court erred in sustaining plaintiff's motion for new trial (a) for the reason plaintiff failed to make a case for the jury, and (c) for the reason the errors complained of are harmless errors, since there was a total failure of proof by plaintiff. Secs. 1001, 1002, R.S. 1929; Ittner v. Hughes, 133 Mo. 679; Daken v. G.W. Chase, etc., Mer. Co., 197 Mo. 238; Magrane v. Railroad Co., 183 Mo. 119; Quinn v. Railroad Co., 218 Mo. 545; Moore v. Railroad Co., 176 Mo. 528; Carr v. Railroad Co., 195 Mo. 214. The court erred in sustaining motion for new trial (b), for the reason this is a summary proceeding to discover assets of an estate and the only means of enforcing the judgment is by commitment to jail, and since the record shows the death of the alleged derelict parties there is no means of enforcing the judgment. Secs. 63-66, R.S. 1929; In re Estate of Huffman, 132 Mo. App. 44; Dameron v. Dameron, 19 Mo. 317; In re Fowler, 221 Mo. App. 325.
Von Mayes and Ward Reeves for respondent.
(1) As to the point that the plaintiff failed to make a case for the jury, we do not deem it necessary to cite any authorities, because the appellant does not undertake to set out in his brief the substance of the testimony or make any statement in regard to the testimony on this feature of the case, and we do not assume that this court will wade through the record to ascertain whether or not there is substantial testimony to go to the jury on the issues involved, since the appellant does not undertake to point out wherein the testimony fails and cites no authority on the point. If the court cares to read the record of the evidence we are sure that it will be convinced that plaintiff had substantial testimony to go to the jury on the question of whether or not property or money was concealed or otherwise withheld by defendants from the estate of Newberry Gibson. Besides, as to the defendant, Bonnie Johnson, no demurrer to the evidence was offered either at the close of plaintiff's case or at the close of the whole case, and this defendant having joined plaintiff in submitting the case to the jury, she thereby admitted that plaintiff made a case for the jury and cannot raise this question on appeal. Carrol v. Young, 267 S.W. 436; Boone County Lbr. Co. v. Neidermeyer, 187 Mo. App. 180. (2) It has been in effect held by the appellate courts that in proceedings under Sections 63-66, Revised Statutes 1929, where funds have been withheld or even converted, a personal judgment may be entered against the guilty party and upon which, of course, a general execution may be issued, and we do not believe that commitment for contempt is an exclusive remedy, but that the party in the wrong may be proceeded against by general execution. The case of Dameron v. Dameron, 19 Mo. 317, cited by appellant, has been overruled. Tygard v. Falor, 163 Mo. 242; In re Estate of Huffman, 132 Mo. App. 44; Clinton v. Clinton, 223 Mo. 371; Roelofson v. Whitten, 249 S.W. 688; Newell v. Kern, 218 S.W. 443; Sexton v. Sexton, 295 Mo. 134. It will be noted from the cases cited above that it is expressly held that property rights are determined in this statutory proceeding, and that the proceeding is a lawsuit. Under the statute, as well as the common law, all actions in which the rights of property are determined survive to the personal representative on the death of a party to a lawsuit. Sec. 891, R.S. 1929; Stanley v. Vogel, 9 Mo. App. 98; Baker v. Crandall, 78 Mo. 584; Whiting v. Crandall, 78 Mo. 593; Musick v. Railway Co., 114 Mo. 309; Kingsbury Exrs. v. Lane, Exrs., 21 Mo. 115; Brewington v. Admrs., 31 Mo. 38; Marks v. Hardy, 86 Mo. 232; Wiener v. Peacock, 31 Mo. App. 238.
This is a proceeding under Sections 63-66 of the Revised Statutes 1929, for the discovery of assets, said to belong to the estate of Newberry Gibson, deceased. It was duly initiated in the probate court by affidavit filed in which Charles Johnson and Bonnie Johnson, his wife, were charged with concealing, possessing and wrongfully taking in the period of 1922-1928 and wrongfully withholding money in the sum of $23,000 and other personal property belonging to said Gibson, deceased. In response to citation, Johnson and his wife appeared in the probate court and upon examination under oath denied the allegations in the affidavit. Thereupon issue was joined upon interrogatories filed by the executor and answers filed thereto by the defendants. Later the issue was tried in the probate court and from the judgment there rendered the defendants appealed to the circuit court. Upon a trial anew in the circuit court a demurrer to the evidence was given for defendant Charles Johnson and the defendant Bonnie Johnson recovered a verdict. Thereafter, pending a motion for a new trial duly filed by the plaintiff administrator c.t.a., the defendants Charles Johnson and Bonnie Johnson, died. The deaths were suggested, the cause was revived against Newberry Johnson as administrator of the estates of the deceased defendants, and he was brought in by writ of scire facias. At the return term of the scire facias, the motion for a new trial was heard and sustained, and Newberry Johnson, the substituted defendant, hereinafter referred to as the appellant, duly appealed to the Springfield Court of Appeals from the trial court's order granting a new trial. That court, being without jurisdiction because of the amount and value of the property in controversy, transferred the cause here.
The appellant's first contention is that the evidence in the case could not in any event make out a case for the jury and for that reason it was error to grant a new trial.
I. It may be observed at the outset that it does not appear either in the printed record or in the briefs of counsel that the court nisi, in passing on the motion for a new trial, specified any ground upon which it was sustained. The motion contains some half-dozen grounds, one of which is that the verdict was against the evidence and another that the jury were improperly instructed at the instance of the defendants.
Upon that condition of the record the appellant apparently assumes that the motion was ruled on the weight of the evidence. His position is sustained by decisions of our several Courts of Appeals. [King v. Mann, 208 Mo. App. 642; Barth v. Boyer, 27 S.W.2d 499, 500; Piano Co. v. Wilson, 27 S.W.2d 1051.] [2] The respondent makes a counter-suggestion that the instructions given at the instance of the original defendants incorrectly declared the law of the case, thereby misleading the jury to an improper verdict, and that such error justifies the granting of the new trial. His position is fully tenable if he has discharged the burden of showing such error. However, his effort in that behalf consists alone in his statement of his proposition. He has not seen fit to comply with our Rule 15 by directing, in his brief, our attention to any particular fault in the instructions. Consequently the instructions are not before us and we are not disposed to search the record and make an independent analysis of them. We note a similar omission upon the part of the appellant. Though attacking the evidence upon the ground of insufficiency, he has not in his brief stated the evidence or given any summary thereof but has been content with the bare statement that it was insufficient. That is not a compliance with Rule 15, which requires that the appellant's brief shall contain "a fair statement of the facts." It is therefore apparent that the ruling complained of receives no light from the record proper or from the appellant's statement.
Taking the point as it is thus presented, we may dispose of the first assignment briefly by stating a general rule which governs that phase of the case. Under a statute of long standing (now Sec. 1001, R.S. 1929) a trial court has a broad discretionary power to grant one new trial on the ground that the verdict is against the evidence; and the general rule is that the discretion exercised by the trial judge in that respect will not be disturbed, unless it be shown that a converse verdict could not for lack of supporting evidence be permitted to stand. [State ex rel. v. Ellison, 268 Mo. 225, 186 S.W. 1075.] This because the trial judge has an advantage in his opportunity to see the witnesses, to observe their conduct and demeanor on the witness stand, their interest, bias or prejudice; to form some opinion as to their veracity, and to observe various incidents of the trial not ordinarily reflected by the printed record. [Honea v. Railroad, 245 Mo. l.c. 650, 151 S.W. 119.] It follows that the trial court should not be convicted of error in granting the new trial on the weight of the evidence, unless the order complained of was erroneous on another ground yet to be considered.
It is also contended that this proceeding was not revivable against the appellant as administrator of the estates of the deceased original defendants. As reasons for the contention it is asserted that the proceeding is summary and that the statutes upon which it is predicated provide no adequate means of enforcing any judgment that might thereunder be rendered in this case.
[4, 5] The procedure authorized by those statutes "is a summary and quick method of bringing property into the estate. The probate court is a court of record, and in practice, when not otherwise provided, may borrow from the Code." [Clinton v. Clinton, 223 Mo. 371, 388, 123 S.W. 1.] The procedure was devised not merely to discover assets, but also to expedite the administration of estates by affording a new and special remedy for collecting assets. [ Ibid. 384.] It is an action, within the meaning of the law, in which property rights may be tried and determined (Trautman v. Trautman, 300 Mo. 314, 254 S.W. 286; Tygard v. Falor, 163 Mo. 242, 63 S.W. 672; In re Huffman's Estate, 132 Mo. App. 44; Ex parte Gfeller, 178 Mo. 248, 77 S.W. 552; Eckerle v. Wood, 95 Mo. App. 378), and hence cannot be maintained upon purely equitable grounds. [Bank v. Lillebridge, 316 Mo. 968, 293 S.W. 116; Brewing Co. v. Steckman, 180 Mo. App. 320.] As an action at law it is exclusively cognizable by the probate court as the court of first instance (Brewing Co. v. Steckman, supra, l.c. 332; Kerwin v. Kerwin, 204 S.W. (Mo. App.) 922; Lamm v. Lamm, 216 S.W. (Mo. App.) 332; Beck v. Hall, 211 S.W. (Mo. App.) 127), save only where there may be sufficient reasons disclosed in exceptional cases why the matter, in whole or in part, might not be tried in the probate court. [Brewing Co. v. Steckman, supra.]
II. Having by way of preliminary considered the nature, purpose and scope of the proceeding, and in what court it is cognizable, we come now to the question of the propriety of the revivor as dependent upon the nature and effectiveness of any judgment that might be rendered in the proceeding in the event of a verdict adverse to the appellant.
It is provided in Section 66 that upon a trial by court or jury of the issues upon the interrogatories and answers thereto, "judgment shall be rendered according to the finding and for costs, and if convicted, the court shall compel the delivery of the property detained by attachment of his (the defendant's) person for contempt, and the court shall commit him to jail until he comply with the order."
A judgment must necessarily be responsive to the issues. The issues in such proceeding are framed by the interrogatories and the answers, and the trial is had upon such issues. The interrogatories herein, four in number, were in varying form and related essentially to, (1) money or other personal property of the testator in the then present possession or control of the defendants, (2) to any such not then in possession or control, and the disposition made thereof, (3) to deposits of money in the years 1922 to 1928 to credit of defendants in a certain designated bank, and the amount thereof, and (4) to whether the defendants in or prior to the year 1928 took money or property of the testator from an iron safe in his house, and sought the amount and description thereof. The answers were separate and corresponding specific denials.
It is manifest that the issues do not describe any specific property or money of which delivery in specie is sought; so that, for the moment, the provision of the statute which relates to delivery and the commitment of a defendant for his refusal to deliver upon his conviction, may be laid out of view. Let it, then, be assumed that upon a trial it be found that the original defendants received certain moneys and other personal property belonging to the deceased testator, and had withheld and converted the same in an amount and value shown. Is there any reason why the court could not, as required by the statute, "render judgment according to the finding?" We know of none, and none has been pointed out. Such a judgment would determine finally the amount in which the estates of the deceased defendants were indebted to the estate of the testator, Gibson, at his death. [Sexton v. Sexton, 295 Mo. 134, 243 S.W. 315; Roelofson v. Whitten, 249 S.W. (Mo. App.) 688; Newell v. Kern, 218 S.W. (Mo. App.) 443.] It would constitute an adjudicated and incontestable claim which could be filed and presented in the probate court to be classified against the estates of the deceased defendants. [Marks v. Hardy, 86 Mo. 232. l.c. 235.] [8] On the other hand let it be assumed that a finding that specific property was so withheld and was among the chattels of the defendants at their death, and afterward in the possession of their personal representative, the appellant. We see no reason why a trial might not be had in which the title to such property would be determined, or why upon a refusal of the appellant to deliver the same, the attachment feature might not be disregarded and a judgment for the value thereof entered as for conversion, or other judgment suitable to the finding and not involving commitment to be classified in the same manner as in the other instance mentioned. [Marks v. Hardy, 86 Mo. 232, l.c. 235.]
The last case cited involved the question of the suitability of a possible judgment as determining the survivability of the action, after the death of the defendant, in a proceeding supplemental to judgment, against his administrator. The plaintiff having a judgment and an unsatisfied execution issued thereon against a bank, moved under an available statute, for execution against A on account of an unpaid balance of shares of the bank's stock held by A. Execution was awarded and this order was affirmed by the Court of Appeals. Pending the appeal in this court A died. His administrator resisted the revivor, and that question was presented for decision. It was argued that the order for execution did not constitute a judgment or demand which could be presented and classed as a demand against the estate and as no execution could be issued thereon, the proceeding must abate. This court in answering the argument, concluded as follows, at page 235:
"Of course the proceeding on the motion is not an original suit. It is, however, a supplementary proceeding, and for many purposes must be regarded and treated as an action pending. It would be against the policy of the law to hold that this proceeding must abate by the death of the defendant. The order for execution is designed to take the place of a more cumbersome suit, which would result in a decree. While execution may not go out against the estate, we think the final adjudication on the motion may fairly be regarded and treated as a demand against the estate, and may be classed as such, and we so rule; and, further, the proceeding does not abate when commenced against the stockholder in his lifetime by reason of his death thereafter."
Unless this proceeding is available against the estates of the deceased defendants the plaintiff is without remedy. For example, neither replevin nor trover and conversion would lie. They are mere possessory actions in which the question of title is not primarily involved and hence not determined by the judgment therein. The case of Beck v. Hall, 211 S.W. supra, is illustrative in its application of principles discussed and authorities cited in this paragraph. It was in replevin and involved property claimed as a gift causa mortis, The alleged donor and the donee died shortly after the transaction. The action was brought by the donee's administrator against the administrator of the donor. The Kansas City Court of Appeals held that replevin did not lie and that the cause was cognizable only by the probate court as the court of first instance and in a proceeding brought under Sections 63-66.
We conclude, for the reasons stated herein, that there was no error in the granting of a new trial, and the order appealed from is affirmed and the cause remanded. All concur.