73 Mo. 236 | Mo. | 1880
This was an action of trespass commenced originally before a justice of the peace in Gentry county,. Missouri, where, upon a trial before a jury, the plaintiff' got a verdict and judgment for $30, from which the defendant appealed to the circuit court, where, upon a trial before the court without a jury, the plaintiff again got a judgment and verdict for $15, from which the defendants,, after an unsuccessful motion for a new trial, bring the case here by appeal.
The complaint filed before the justice, on which this.
After the finding and judgment of the court for plaintiff, the defendants, in due time, filed their motion for a new trial, for the following reasons: 1st, The finding of the court sitting as a jury is contrary to the evidence. 2nd, The finding of the court sitting as a jury is against the weight of evidence. 3rd, That the property in controversy in this suit came to the possession of EmmaMeyer; the wife of plaintiff, in August, 1874, while she was residing with her said husband in the state of Indiana, as appears by the uncontradicted evidence in the cause, and by the laws of the state of Indiana, the said property remained _th e separate property of his wife, Emma Meyer, during all ■the time she continued to reside in the state of Indiana.
The defendants also, in due time, filed their motion in arrest of judgment for the reasons: 1st, The finding was against the evidence in the cause. 2nd, The finding was against +he weight of evidence in the cause. These motions for a new trial and in arrest being both overruled by the court, the defendants then and there duly excepted.
It appears from the bill of exceptions that plaintiff, on the 2nd day of March, 1871, married the daughter of one of the defendants, and the sister of the other; that this marriage took place in the state of Indiana, where all the parties resided at the time; that shortly thereafter, in the spring of 1871, all the parties removed to the State of Missouri, and settled in Gentry County; that in the fall of 1871 the plaintiff and wife moved back to the state of Indiana, where the wife remained with her husband about one year, when she left him on account of alleged mistreatment, and returned to her father in Gentry county, Missouri, where she remained about eighteen months, when her husband came to Missouri and persuaded his wife to return with him to Indiana, which she did in the summer of 1874, where plaintiff and wife continued to reside until sometime in 1876, when they again remove^ to Missouri and settled i-n Gentry county. It also appears in August, 1874, when
No proof whatever was made before said circuit court, at least the bill of exceptions shows none, as to what was the law of Indiana touching the ownership of such goods or the rights of married women thereto, if any, at the time of their arrival or while they remained in that state. The only evidence touching the existence, pendency or result of the divorce suit was the statement of plaintiff on cross-examination that “ ho was a witness and testified in reference to his wife’s application for alimony pending the divorce suit.” It does not appear when that suit was brought, whether it had been tried and disposed of, or how, or whether it was still pending. This is all the reference made to it. Erom this record it appears that no exceptions whatever were taken to the action of the trial court except in overruling the motions for a new trial and in arrest of judgment.
That there was no .error in overruling these motions is manifest, we think, from the record itself. The trial was before the court. No instructions or declarations of law were asked or given on either side. The evidence before the court, on all the controverted points of the case was contradictory and conflicting in a high degree; and in all such cases the rule is not to disturb its findings upon the mere suggestion that the same are .against the evidence or weight of evidence. In such cases it is the province of the trial court to weigh and pass upon the evidence, and we will not review its decision unless some erroneous rulings as to the law of the cause'is made to appear. This position is too well settled to need either argument or citation of authority.
But the appellants insist that, as plaintiff and wife were domiciled in the state of Indiana when the articles in question were shipped to them from Missouri, that the gift took effect upon their arrival at
their destination in Indiana, and that by the law of that
This gift from the mother to the daughter was made in August, 1874, prior to the enactment of the Missouri statute of March, 1875, set up in appellants’ . . 'A 1 A motion for a new trial, ouch gifts of personal property in this state made prior to the date of that law would, by the rules of common law then in force, vest the title in the husband, and not in the wife, and in absence of proof to the contrary, the court will hold that it is so vested in the state of Indiana. After it had thus vested, the transfer of the husband and wife with said property to Missouri in 1876, will not have the effect to divest the title from the husband and transfer it to the wife. The operation of the Missouri statute of March 25th, 1875, can have no force or effect to disturb or change the relative rights of husband and wife to personal property acquired in a foreign jurisdiction and before their arrival in Missouri. In this casé no question can arise as to the operation or effect of the divorce-law upon the title of this property, inasmuch as no evidence is shown by the bill of exceptions to have been made or offered in the trial court to show that any divorce had in fact been obtained at the date of said trial. Indeed the appellants’ brief in this court admits that no divorce was obtained until after that trial.
The motion made by the defendants in the justice’s court to dismiss the cause for the reason that no bill of items was filed as required by law, was not renewed or made in the circuit court, where the trial is de novo, and the defendants, having gone to trial in that court on the merits, will not now be heard to raise that objection; they will be held to have waived it. Eor these reasons the judgment in this cause is affirmed.