Opinion
Opinion delivered June 5, 1950.
1. — Appeal and Error — Parties. Where demand against estate was filed in probate court, and claimant and administrator appeared, and claim was ordered allowed, and administrator appealed from said order to Circuit Court where judgment was rendered for amount of claim, and administrator did not appeal from judgment of Circuit Court, heirs at law of estate who were not parties to the proceeding in probate court and who did not join in appeal from probate court to circuit court, and where there was no showing that they were ever made parties in circuit court, were strangers to the record not parties to the suit and could not appeal to appellate court. Mo. R.S.A., Secs. 283, 847, 126.
2. — Appeal and Error. Appeals are favored and statutes granting appeals are liberally construed.
3. — Appeal and Error. The right of appeal is purely statutory and where statute does not give such right it does not exist.
Appeal from Circuit Court of Linn County. — Hon. G. Derk Green, Judge.
APPEAL DISMISSED.
Errol Joyce and Walter A. Raymond, for appellant.
The court erred in failing to sustain defendant's motion for a directed verdict at the close of all the evidence for the reason that there was no "clear and convincing" evidence justifying submission of plaintiff's case to the jury. Farris v. Farris' Estate, 212 S.W.2d 71, 75, 76; Trantham v. Gullic, 201 S.W.2d 522, 526; Manning v. Driscoll's Estate, 174 S.W.2d 921, 924; Brunnert v. Boeckmann's Estate, 258 S.W. 768, 770, 771; Clow v. Wormington, 206 S.W. 415, 416; Smith v. Davis' Estate, 206 Mo. App. 446, 230 S.W. 670, 673; Wood v. Lewis' Estate, (Mo. App.) 200 S.W. 681. The court committed prejudicial and reversible error in giving instruction No. 3 at the request of the claimant submitting the issue of family relationship to the jury when under the evidence as a matter of law there was a family relationship between claimant and the deceased and the burden was on claimant to prove an express contract with deceased to be entitled to recover. This instruction is also reversibly erroneous in failing to require a finding claimant intended to charge and deceased intended to pay. Nelson v. Poorman's Estate, 215 S.W. 753, 754; Hyde v. Honiter, 175 Mo. App. 583, 158 S.W. 83, 87, 88; Fitzpatrick v. Dooley, 112 Mo. App. 165, 172, 86 S.W. 719, 721; Wood v. Lewis' Estate, 167 S.W. 666, 668, 669; Burt v. Gabbert, 174 Mo. App. 521, 160 S.W. 838, 839. Respondent's motion to dismiss appeal is without merit and should be overruled. Section 82, Mo. Code Civil Procedure; Sections 17 (a), 21, 81 Mo. Code Civil Procedure; Zeitinger v. Hagardine-McKittrick Dry Goods Co., 298 Mo. 461, 250 S.W. 913, 916 (3); Hammers v. Sanders, 106 Mo. App. 100, 80 S.W. 16, 17; State ex rel. Jones v. Davis, 216 S.W.2d 155, 158; In re Nelson's Estate, 237 Mo. App. 28, 166 S.W.2d 333, 338. No submissible case was made. Roller v. Montgomery's Estate, 45 S.W.2d 945; Roller v. Montgomery's Estate, 80 S.W.2d 246. Plaintiff's instruction No. 3 is reversibly erroneous. Patrick v. Crank, 100 S.W.2d 381; Lauf v. Wiegersen, 297 S.W. 79, 83; Wandling v. Broaddus, 10 S.W.2d 651.
H.K. West for respondent.
The Trial Court did not err in submitting this case to the jury. Callahan v. Riggins, 43 Mo. App. 131; Moore v. Renick, 95 Mo. App. 202; Kleinberg v. Kinealy, 193 S.W. 981; Patton v. Crank, 110 S.W.2d 381; Smith v. Myers, 19 Mo. 433; O'Shaughnessy v. Brownlee, 77 S.W.2d 867. The Court could not have found, as a matter of law, that a family relationship existed. Patton v. Crank, 110 S.W.2d 381; l.c. 384. Instruction 3 correctly declared the law as set out in all of the cases cited in the brief of the heirs and required the finding of an "understanding" and all the matters complained of were set forth in Instructions 4 and 5 given by the Court on behalf of the defendant. Instructions should be read as a whole and they properly presented the matter to the jury. Patton v. Crank, 110 S.W.2d 381; Lauf v. Wiegersen, 297 S.W. 79, l.c. 83. The word "presumed" in the Instruction is synonymous with the word "implied." Wall v. Brocke, 21 Haw. 399; Brush Electric Light Power Co. v. City Council of Montgomery, 21 So. 960, 114 Ala. 433, 446; Appeal of Miller, 100 Pa. 568, 570, 45 Am. Rep. 394; In re Porter's Estate, 167 A. 490, 492, 110 Pa. Sup. 27; Ottumwa Mill Construction Co. v. Manchester, 115 N.W. 911, 912, 139 Iowa 334; Keller v. Industrial Commission, 183 N.E. 237, 240, 350 Ill. 390; Wickham v. Weil, 17 N.Y.S. 518, citing 2 Bl. Comm. 443; McSorley v. Faulkner, 18 N.Y.2d 460; People v. Bennett, (N.Y.) 6 Abb. Prac. 343, 348; Hawkes v. Taylor, 51 N.E. 611, 613, 175 Ill. 344; Thompson v. Woodruff, 47 Tenn. (7 Cold.) 401, 410; Deane v. Hodge, 27 N.W. 917, 919, 35 Minn. 146, 59 Am. Rep. 321; Wyoming Nat. Bank v. Brown, 53 P. 291, 292, 7 Wyo. 494, 75 Am. St. Rep. 935; Hamilton v. Winterrowd, 43 Ind. 393, 396; Day v. Connecticut Gen. Life Ins. Co., 45 Conn. 480, 490, 29 Am. Rep. 693; Nolan v. Swift, 69 N.W. 96-98, 111 Mich. 56, 60. Code Rule 123 is called to the attention of the Court. The Appeal should be dismissed because not taken by a party to the action. Civil Code, Sec. 126, Carr 1184; Shock v. Berry et al., 285 S.W. 122, l.c. 123; Eisiminger v. Stanton, 129 Mo. App. 403, l.c. 412-413; Bacon v. DeArmond, 47 S.W.2d 213, l.c. 215; Sexton v. Snider, 119 Mo. App. 668, l.c. 674-675; McPike v. Bank, 193 S.W.2d 961; Clader v. City of Neosho, 192 S.W.2d 508, l.c. 509; Estate of Messersmith, 264 Mo. 610; State ex rel. v. Cane, 220 S.W.2d 45; Gibbons v. Cannaven, 169 A.L.R. 1190, l.c. 1202, 393 Ill. 376, 66 N.E.2d 370; Rone's Estate v. Rone, 218 S.W.2d 138; Leahy v. Merc. Trust Co., 247 S.W. 396, l.c. 404; In re Campbell's Estate, 202 S.W. 1114, 274 Mo. 343; McLain v. K.C. Bridge Co., 88 S.W.2d 1019, l.c. 1020; Love v. White, 154 S.W.2d 759, l.c. 760; Kaltwasser v. Kaltwasser, 197 S.W.2d 102. There was no Motion for New Trial by the alleged appellants, nor could they file one and should the appeal not be dismissed, consideration would be left to the record proper. Ewart v. Penniston, 233 Mo. 695, 136 S.W. 422; Leahy v. Mercantile Trust Co., 247 S.W. 396; McLain v. K.C. Bridge Co., 88 S.W.2d 1019, l.c. 1020; Love v. White, 154 S.W.2d 759, l.c. 760; In re Main's Estate, 152 S.W.2d 696, l.c. 701.
This case originated in probate court where Sadie Ruddy filed a demand against the estate of George Labar, L.S. Tharp, administrator, for board, room and personal services, in the amount of $4000. Claimant and administrator appeared in person and by their respective attorneys. Trial to a jury resulted in a verdict for the full amount demanded, and said claim was so allowed and classified. The administrator appealed to the circuit court, where a jury trial again resulted in a verdict and judgment in the full amount claimed.
From that judgment the administrator did not appeal, but three "heirs at law of the estate of George Labar, deceased," seek to prosecute this appeal. However, no one of these appellants were parties to the proceeding in probate court, or joined in the appeal from probate court to circuit court; nor is there any showing that they were ever made parties in the circuit court, if that could have been done.
Section 283, Mo. R.S.A. regulating appeals from probate court, provides: "* * * and the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor, or other persons having an interest in the estate under administration; * * *." However, as stated, the appeal from probate court was taken by the administrator alone.
Section 1184, Mo. R.S.A. (Section 126 of the general code for civil procedure, Laws Missouri, 1943, page 390) governs the right of appeal from circuit court. It provides: "Any party to a suit aggrieved by any judgment * * * may take his appeal to a court having appellate jurisdiction * * *." The persons who seek to prosecute this appeal are not parties to the suit. They are strangers to the record. Only a party to a suit may appeal. Ewart v. Peniston, 233 Mo. 695, 705; Leahy v. Campbell, 274 Mo. 343, 202 S.W. 1114, 1115; In re Main's Estate, 152 S.W.2d 696, 701; In re Moore's Estate, 354 Mo. 240, 189 S.W.2d 229, 232; Kaltwasser v. Kaltwasser, 197 S.W.2d 102, 103.
Prior to 1891 the statute providing for appeal from the circuit court gave such right to "every person aggrieved"; but since its amendment the right has been limited to "any party to a suit." In re Moore's Estate, supra, 32. Appeals are favored and statutes granting appeals are liberally contrued; but the right of appeal is purely statutory and where the statute does not give such right it does not exist. In re Estate of Moore, supra, 233.
The appeal should be dismissed. Bour, C., concurs.
The foregoing opinion of SPERRY C., is adopted as the opinion of the court. The appeal is dismissed. Dew, P.J., Broaddus, J., concur; Cave, J., not participating.