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quence of the burning of a building. Continued / question of defect of summons, and amounts to
Anderson, Gilbert & Levi, of St. Louis, for the injury to Edgar, but followed it."
appellant. In the case before ús the single flash
D. J. O'Keefe, of St. Louis, for respondent. shown to have been emitted by the electric current, at the very instant when the short REYNOLDS, P. J. On June 4th, 1914, circuit occurred, communicated the fire to Peter Hauptmann Tobacco Company, respondFarley's clothing, proximately causing his in- ent here, filed its statement before Robert juries; and the “burning" of appliances up- Walker, a justice of the peace of the Fifth on the switchboard, which thereupon result- District of the city of St. Louis, the state ed from such short circuit, cannot be said to ment being in the form of an affidavit, to the have bad a causal connection with such in effect that the plaintiff had a just demand juries.
against Henry Unverferth, defendant, the It is true, as appellant argues, that any amount of which, and which plaintiff ought evidence, of any substantial nature whatso- to recover after all just credits and set-offs, ever, tending to show that the insured sus- being $500, and that affiant bas good reason tained his injuries by reason of the burn to believe, and does believe, that defendant is ing of the building, will suffice to make the about to move out of the state with intent to question as to plaintiff's right to recover the change his domicile, and that the damages double indemnity one for the jury. But we for which action is brought are for injuries are unable to perceive any such evidence in arising from the commission of some felony the record, and consequently hold that the or misdemeanor, and that the debt sued for trial court did not err in taking this issue was fraudulently contracted on the part of from the jury by the peremptory instruction the debtor. given.
While this was filed with Justice Walker, The judgment must therefore be affirmed; the statement, a blank form, evidently, enand it is so ordered.
titles the cause as before Charles S. Luce,
another justice of the same district. A bond REYNOLDS, P. J., and BECKER, J., con
was duly filed before Justice Walker, was ap-
of the Fifth District, directs that the conPETER HAUPTMANN TOBACCO Co. v. singular his goods, etc., or so much thereof
stable attach Henry Unverferth by all and UNVERFERTH. (No. 15115.)
as shall be sufficient to satisfy the sum of (St. Louis Court of Appeals. Missouri. Ar- $500, with interest and costs, “in whose gued and Submitted Nov. 7, 1918. Opinion hands or possession the same may be found Filed Dec. 3, 1918. On Motion for Rehear- in the city of St. Louis, so that he be and aping, Jan. 6, 1919.)
pear before me, Charles S. Luce, a justice of 1. TROVER AND CONVERSION Cm 66-EMBEZ- the peace within and for the said Fifth DisZLEMENT-QUESTION FOR JURY.
trict of the city of St. Louis, at my office, 620 Evidence in action based on claim of ab- | Chestnut Street, in said district, on the 18th straction of money by defendant from plaintiff's day of June, 1914,” naming the time, and also safe held to make a case for the jury.
directs that the constable summon the de2. JUSTICES OF THE PEACE @w 161(3)-AP- time and place aforesaid, to answer the ac
fendant to appear before the justice, at the PEAL-EFFECT AS APPEARANCE. Under Rev. St. 1909, 88 7568, 7579,
tion of plaintiff, and that he also summon,
appeal by defendant from justice of the peace to
as garnishee, all such persons found in the circuit court, where he went to trial on
the city of St. Louis, as may be directed by his motion to dismiss, then on his plea in plaintiff or its agent, to appear before the abatement, and then on the merits, waives said justice, at the time and place aforesaid,
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to answer such interrogatories as may be patie tarn that he had served it by leaving a true
this the special constable Browne made repounded. This was signed by Justice Walker. The constable made return on this, that copy at the usual place of abode of the de he had executed the summons in the city of fendant with a member of his family over the St. Louis on June 4th, 1914, by delivering age of 15 years. This return is sworn to by a true copy to the within named defendant, the special constable. On October 15th, the and had further executed it in the same Justice rendered judgment by default in favor city, and on the same date, by attaching as of plaintiff for $500 and against defendant. the property of defendant the following per- It appears that the Broadway Savings Trust sonal property, to-wit, by direction of plain-Company had filed an answer admitting an tiff's attorney summoning the Northwestern account of $918.72 to the credit of the de Bank and the Broadway Savings Trust Com- fendant. Whether any judgment was ever pany as garnishees.
entered on this against the garnishee does not It appears that the garnishment was dis- appear and that garnishee did not appeal missed as to the Northwestern Bank later Defendant Unverferth thereupon duly appeal. and there was a return by the constable, ed to the circuit court, lodging a transcript of setting out, among other things, service on the proceedings before the justice, it being defendant, summons to appear before the jus- recited in that transcript that the Northwesttice, and attachment of any moneys in the ern Bank, one of the parties garnished, had hands of the Broadway Savings Trust Com- been discharged as garnishee by the justice. pany, and summoning it as garnishee to ap- The defendant filed a motion in the circuit pear, etc., on June 4th, 1914.
court to discharge the garnishment, setting It seems that when the error in naming out that he appeared solely for the purpose Mr. Luce as the justice before whom the of making this motion; that the cause had
was pending, was discovered, that been appealed from Justice Walker; that plaintiff filed a new affidavit or complaint, en- there is no writ of attachment in the cause; titling it as before Robert Walker, justice that the constable has made return that on of the peace, otherwise, however, as in the June 4th, 1914, he served a garnishment no first statement or affidavit. This was sworn tice on the Broadway Savings Trust Company to by the treasurer of the plaintiff on June as the garnishee of the defendant; that on 18th, before a notary public, and on that date October 15th, 1914, the justice entered an orJustice Walker issued a new writ to the con- der sustaining an attachment against defendstable, dating it, however, June 4th, 1914. ant in the sum of $500; that there was no On this writ the constable returned that on lawful summons' in the cause and no service June 4th, 1914, he served it on defendant and of any summons, and that on October 15th notified the Broadway Savings Trust Com- the justice purported to render a judgment pany of the attachment, also garnishing it. against defendant for $500; that the deOn September 1st, 1914, however, Justice fendant did not appear for trial, or at any Walker issued a new writ of attachment and other time, in the justice's court, wherefore summons, returnable before him September defendant avers that the proceedings in the 18th, 1914. On this new writ the constable justice's court are null and void and without made this return:
jurisdiction and prays the court to enter an “Executed the within writ of attachment and order that the garnishment be released and summons in the city of St. Louis, Missouri, the the funds of the defendant freed from the 8th day of September, A. D. 1914, by not find- lien of the judgment, and that the judgment ing the within named defendant, and further be set aside and for naught held and that the executed his writ of said city of St. Louis the action be abated or dismissed. That motion
day of A. D. 1914, by attaching as the property of said defendant the fol- and was submitted to the court upon the
came up for hearing before the circuit court lowing personal property, to-wit”
transcript, papers and matters heretofore re-attaching any money in the hands of the ferred to, and was overruled, plaintiff tender. Broadway Savings Trust Company and sum- ing a term bill of exceptions which was duly moning it to appear.
signed and filed of record. Thereafter de. Under date of October 1st, Justice Walker fendant filed a plea in abatement, setting issued a writ, directed to Special Constable out that he appeared specially and only for Thomas Browne of the Fifth District of the this plea and for no other purpose, and under city of St. Louis, commanding him to summon protest, and on account of the previous rulHenry Unverferth to appear before the jus- ings of the court compelling him to defend tice on October 15th, 1914, to answer the com- the action, and reserving to himself all explaint of the Hauptmann Tobacco Company, ceptions to previous adverse rulings of the founded upon a writ of attachment wherein court. The plea in abatement specifically de plaintiff demands $500. The writ bore this nies the allegations in the complaint as indorsement: “At the risk and request of ground for attachment. The cause was heard the plaintiff, Thos. Brown, is hereby appoint- before the court on this plea in abatement, ed Special Constable to execute and return plaintiff introducing its evidence, defendant this writ,” signed, “Robert Walker," and on appearing and introducing his, and judgment was rendered in favor of the plaintiff, de, everything, the whole money is gone.” Witfendant excepting, filing a motion for new ness said, “I do not see how that is, the safe trial and one in arrest. These motions were was locked, how could the money.be gone in overruled, defendant excepting. Thereafter the safe there when the safe was locked. To the cause coming on for trial on the merits, this defendant said, “Well, I went home, I it was submitted to the court on the evidence got home and I signed my will,” showing it heard on the plea in abatement. Judgment to witness and asking him to sign it as his was thereupon rendered for plaintiff for $500. will, which witness did. That was 7 o'clock Filing a motion for new trial and in arrest in the morning at the house of the witness. and excepting to these being overruled, de Witness said he did not know the combinafendant has duly appealed to our court, tion of the safe; had never been given that;
The material evidence for plaintiff on the had stayed at his house about 10 minutes merits was, in substance, as follows:
after defendant came to him. Witness told A witness for plaintiff, who was night him he would go with him and they went watchman, testified that he started on duty back to the stable. There were several poat the place of business of plaintiff at about | licemen there then. When defendant asked half past 5 o'clock on the evening of May 30th witness to sign his will, he asked him what and watched the place until the next morn- was the matter and defendant said he "felt ing, 5 or 10 minutes after 5 o'clock. When kind of funny; felt like jumping in the river." he went to the place there were other men Defendant told the lieutenant of police, who there. Defendant was there and stayed there was there when they went back to the stable, about 15 or 20 minutes and then went up- that he (defendant) wanted to get some monstairs where he lived with his family; did ey out of the safe; did not open the safe that not see defendant any more after he went morning, however, while witness was there. out. Witness, after he got through with his When witness left defendant in the morning work, sat in the office and watched the place; about 5 minutes to 5 o'clock defendant was saw the safe in the office when he went in the only one in the office. He said he wanted and it was locked; stayed on the premises all to get some ink and a pen out of the safe.
On cross-examination this witness said he night except when he rang the boxes. There did not know the combination of the safe and was a dog there watching the place a good
could not open it. watch dog, and bad to any strangers who might attempt to come in; would not even fied that the plaintiff's premises were on his
A police officer, witness for plaintiff, testilet the drivers come in when he was loose; police beat. He was going to be relieved the dog was tied up in the daytime and turn about 5 minutes past 7 on the day in quesed loose in the evening when every one was tion; saw defendant sitting with his face gone; witness did not leave the stable or toward the safe “tumbling" the combination office during the night; saw defendant again on the safeturning it; sitting on his chair in the morning, about 10 minutes to 5, come with his face toward the safe. Witness only down to the office. Witness asked him what stayed there a few seconds; wanted to be rewas the matter, why had he come down so lieved; that was about 6:40 to 6:45 in the early, and he said he had trouble upstairs morning. When he left on that morning he and so he came downstairs; felt just like met defendant at the corner of Ninth and jumping in the river; said he had trouble Chambers Streets, about 242 blocks north and with his wife-lots of trouble—lots of times; a block west of the stable; he was running he usually came down about 6 in the morning; south on Ninth Street; it was then about 2 this last time that he came down was Sunday minutes of 7. Witness asked defendant what morning at about 5 o'clock; about 2 hours aft
was the matter, and he said, "The money is er that, saw defendant again. Witness was gone out of the safe.” Witness then said to at his house and defendant came there and him, “Why, you did not say anything when I asked him who was there last night, and was in there, to which defendant said, asked if "the red-headed fellow” was there, “Well, I could not get the safe open." Witand witness told him that nobody except the ness said to him, “Do you mean to tell me it police officer had been there, and that the of- is really gone,” and defendant said, “Yes." ficer was in there about 2 minutes and went Defendant was then going toward the stable out, and witness locked the door. The red- and witness went back with him, first going headed fellow referred to is one of the drive to the station and reporting to the sergeant, ers. When defendant asked witness what and the sergeant and two other officers and about the red-headed man, witness asked himself went down to the stable. Witness him what was the matter, and defendant said when they got to the stable and looked said, "He must be." Witness said that he at the safe, the outer door of it was open and (witness) was there all night and this red- defendant told them to "look in there.” They headed man did not come and was not there; looked in and there was nothing there and that nobody was there except the officer at defendant said, "The money is gone.” He 2 o'clock to use the telephone, and then wit- and the other officers asked the defendant ness again asked defendant what was the about the matter and they went up to the livmatter, and defendant said, "Everything, ing room occupied by defendant and his family; looked through the premises, but could , and, as before stated, there was a verdict in not find anything; were there about two favor of plaintiff and against defendant on hours and a half and did not find anything the plea in abatement of the attachment as and decided that they would take defendant well as on the merits. We think this made a to the police station and hold him for in- case for the jury, defendant contending to vestigation, which they did, placing him in the contrary. the holdover. This witness also testified that It is a vexed and not yet entirely settled there was a vicious dog in the stable that did question in this state as to how far a de not permit anyone to go in there; that no- fendant, on his appeal to the circuit court body was in there during the night when he from a judgment before a justice of the made his trips. At 10 minutes to 3 o'clock peace, can challenge the jurisdiction of the witness and his sergeant saw the night justice over his person. We last had that watchman standing in the office. The lights question before us in the case of Powell v. St. were burning Witness made several trips Louis, I. M. & S. Ry. Co., 178 S. W. 212, a by there but did not stop; saw the night case not to be officially reported. In that watchman there every time he went by; saw
case we at first held that the court erred in him there at 5:30 in the morning; did not see overruling the defendant's motion to dismiss defendant there at that time.
the case and in giving judgment for plainAnother witness, treasurer for the plaintiff, tiff. On a motion for rehearing, however, we testified that he occupied that position on held, on the authority of the decision of our May 30th, 1914; described the safe. There Supreme Court in Lesan Advertising Co. v. was a combination on the outside and also Castlemen, 265 Mo. 345, 177 S. W. 597, that on the inside and both locked. Defendant our judgment first rendered in the Powell had the combination and the key and witness Case was wrong and quoted from the Lesan had the combination. Defendant had been Case this (loc. cit. 217, 178 S. W.): employed there about 7 years. His duty was “The jurisdiction of the person of appellant to take the money from the drivers and put was complete by his appearance in the jusit in the safe and give it back to the drivers tice's court at the trial, by taking the appeal, in the morning. When w ss was called to and thereby going voluntarily into the circuit the premises on the morning of the 31st the court (Boulware v. Railroad, 79 Mo. 494; Rev.
St. 1909, $ 7568), and by his general appearmoney was gone. Several police officers were
ance in the circuit court." there; so was the defendant. This witness also testified that the dog was there, and that And we added (178 S. W., loc. cit. 217): it was a vicious dog that would not let any.
"It is true the last words above quoted indione go in there except the watchman,
cate a general appearance in the circuit court, Another witness, the vice-president for which is something more than was had in the plaintiff, testified that he had not known that instant case; but the statute is cited as though defendant called at his house on Sunday it should be adhered to, and so, too, is the rule morning; got notice of the robbery at a and the statute both. declare that the taking
of Boulware v. Railroad. The Boulware Case quarter of 8 when the policeman told him of of the appeal from the justice is sufficient to it. Defendant had been in their employ sev. operate a waiver of service of process and to eral years when they found the money and enter the appearance of the party appealing. checks were gone; plaintiff had got back This we regard as sound law and under the five or six dollars represented by a check; Constitution it becomes our duty to affirm the had tried to recall as many checks as they judgment in conformity to the last ruling of could, and started to trace them but only the Supreme Court on the subject." (The got five or six dollars out of it. According Boulware Case is in 79 Mo. 494.) to the collections that had been made from
Holding, however, that our decision in the the drivers there was $601 in the safe, about Powell Case was contrary to those of the $100 of that being in checks. It was here Kansas City Court of Appeals and of the admitted that witnesses, drivers for the Springfield Court of Appeals in cases cited, plaintiff, would testify that the money turned we certified the Powell Case to the Supreme in to defendant on that occasion would Court where it is still pending and undeteramount to $500, counsel for defendant stat. mined. That case, however, is not altogether ing that he would admit that there was $500 parallel in its facts to the case at bar. In and some odd dollars in cash and the bal- | the case at bar defendant did not appear in ance in checks; would admit that $500 was the justice's court until appearing there to in cash, and would admit that the money take an appeal. He first raised the question was handled just the same as it always was of the jurisdiction of the justice on account by the defendant; that defendant never of the lack of proper service in the circuit touched the money and did not have any idea court, there entering his appearance especialof the amount but simply took the packages ly for the purpose of making that defense. as they were handed in to him and put them  Beyond doubt there was no proper sery. in the safe and he did not know they contain- ice on defendant, for a specially appointed ed that much money.
constable cannot service a writ in attachment.  This was the testimony for plaintifr Section 7424, Revised Statutes 1909, is limit. ed to process issued under Article 3, of Chap | as we deem our decision herein contrary to a ter 65. Mangold v. Dooley, 89 Mo. 111, 1 s. previous decision of the Springfield Court of W. 126; Mitchell v. Shaw, 53 Mo. App. 652. Appeals in Lively v. Munal-Jones Lumber Nor was there valid service of the writ of at- Co., not yet officially reported, but see 194 S. tachment and garnishment. The only one w. 741. duly served was dated back after it was served, and not re-served, and the subsequent writ was not served. But defendant went to trial on his motion
GRASSMUCK v. EHRLER. (No. 15275.) to dismiss, then on his plea in abatement, then on the merits. No such state of facts (St. Louis Court of Appeals. Missouri. Dec. 3, appeared in the cases either before the Kan
1918.) sas City or the Springfield Court of Appeals ; 1. WITNESSES 149(2) COMPETENCY in point of fact, in the one before the Spring- TRANSACTIONS WITH DECEASED. field Court of Appeals, that of Swezea v.
In suit by administrator to recover for Jenkins, 186 Mo. App. 428, 171 S. W. 618, breach of written contract, whereby defendant the motion to dismiss was based on the guaranteed to repurchase from deceased certain ground of the lack of jurisdiction of the jus- shares of capital stock, court properly ruled, in tice of the peace over the subject-matter. view of Rev. St. 1909, $ 6354, relating to cases That is open to challenge at any time, even where administrator is a party, that defendant in the appellate courts. Hence that decision
was incompetent to testify that deceased made
no demand. of the Springfield Court of Appeals is not in point here. The cases before the Kansas City 2 APPEAL AND ERROR em 205 QUESTIONS Court of Appeals are not parallel in their
Not RAISED IN TRIAL COURT-REVIEW. facts to the one here.
Where question to defendant was offered on In the light of the statute, section 7568, Re- sole ground of proving that deceased had made vised Statutes 1909, the concluding Clause of no demand and testimony ruled out for incomwhich reads:
petency of witness, question as to defendant's "Provided, that the affidavit and bond for appeal filed shall be taken and deceased's. son because son was his mother's
competency to testify as to transactions with considered by the appellate court as an en- agent was not raised, and will not be considertrance of appearance," as also of sectioned by the court on appeal, not having been pass7579, Revised Statutes 1909, which reads: ed upon by the trial court. "Upon the return of the justice being filled in 3. CORPORATIONS 120_SALE OF STOCKthe clerk's office, the court shall be possessed
AGREEMENT TO REPURCHASE-EXTENSION OF of the cause, and shall proceed to hear, try
TIME-CONSIDERATION. and determine the same anew, without re
Forbearance to sue upon and cancelation of garding any error, defect or other imperfec-original agreements to repurchase shares of stock tion in the original summons or the service was sufficient to support new agreements, wherethereof, or on the trial, judgment or other in defendant was given extension of time. proceedings of the justice or constable in relation to the cause," and of the last decisions
4. TRIAL C 253(8)-ERRONEOUS INSTRUCTION
-REFUSAL. of our Supreme Court in the Lesan Advertis
Instruction that there could be no recovery ing Co. Case, supra, and Thomasson v. Mercantile Town Mut. Ins. Co., 217 Mo. 485, 116 if deceased's son, when and if he made a de
mand on defendant to repurchase stock, was not S. W. 1092, we hold that the defendant here the agent of deceased was properly refused, since lost the benefit of his several pleas going to plaintiff administrator could have recovered if the jurisdiction of the justice over his per- jury believed that deceased herself made such son by going to trial on the merits.
demand. How far this affects the question of the 5. TRIAL EM 260(5) INSTRUCTION ALREADY Falidity of the attachment, if that point was GIVEN-REFUSAL. raised by either this defendant or by the
Requested instruction, to the effect that garnisbee, we are not here determining, as plaintiff administrator could recover only if dewe do not consider that that question is be- ceased's son was his mother's agent when he fore us on the appeal.
made demand to repurchase shares of stock, That the personal judgment is valid as held correctly and fully covered by instruction against defendant, we think is clear. Wheth- given by the court. er the fund attached can be held is therefore 6. CORPORATIONS 121(6)-STOCK - AGREEnot material, as defendant has given a bond MENT TO REPURCHASE-DEMAND-QUESTION covering the personal judgment against him. FOR JURY.
It follows that the judgment of the circuit In suit by administrator to recover for court should be and it is affirmed.
breach of written contract whereby defendant
guaranteed to repurchase from deceased certain ALLEN and BECKER, JJ., concur.
stock, whether there was a demand and refusal
within the required time held a jury question. On Motion for Rehearing.
Appeal from St. Louis Circuit Court; PER CURIAM. Motion for rehearing over. Leo S. Rassieur, Judge. ruled and cause certified to Supreme Court, "Not to be officially published.”
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