Johnson v. Stephens

147 Mo. App. 75 | Mo. Ct. App. | 1910

REYNOLDS, P. J.

This action was commenced before a justice of tbe peace on a statement filed before him. Tbe case was taken on appeal to tbe circuit court on judgment in favor of plaintiff and a like result following in that court, it was appealed to this court and is reported 107 Mo. App. 629, 82 S. W. 192, where sucb a full statement of it is made that it is unnecessary to repeat wbat will be found on reference to that report. On tbe former bearing of tbe case in this court, Judge Bland, after stating tbe facts in tbe case and tbe evidence in it, and that tbe facts show that Johnson, tbe complainant, was entitled to call on defendant to account for tbe proceeds of the sale of tbe property, and if there was a surplus after deducting wbat would reimburse him, to require defendant to pay over that surplus to him, says “though tbe complaint states a cause of action at law, tbe instruction given for plaintiff (which be quotes) submitted to tbe jury purely equitable is-

sues and was based upon plaintiff’s evidence.” The cause was accordingly remanded. Pending the trial plaintiff and defendant died and this present action is between their respective legal representatives. On the trial anew, the evidence taken in the former trial as preserved by the bill of exceptions, was all the evidence adduced in this last trial. A jury was waived, the case tried by the court, properly tried us an action at law, and the court correctly declared the issues, basing plaintiff’s right to recover as in an action at law and found for plaintiff in the sum of $89.78 and judgment followed accordingly. We find no error in the instructions or the admission or exclusion of testimony. There was ample evidence in the case to sustain the finding of fact which the trial court made and we see no reason to disturb the judgment. It is accordingly affirmed.

All concur.