*1 216 MISSOURI Mississippi Valley v. Franke. Trust Co. interpose misrepresentations of fraud and the defense two-year policy procurement of the brought by
period elapsed suit had been beneficiary. re- to hold do undertake We not that beneficiary, binding but we on the lease was valid and should of this case the facts think that under proof its permitted make evidence and be offer hold, as a its and that we should sustain defense, was inadmissible that such evidence law, matter of pleadings. the face of the objections other admission
There are testimony by plaintiff, are without but such certain questions involved in'the case fact all the merit, were jury which, under instructions submitted .to for considera- not before us held, heretofore have tion. judg- has been from what
It follows J., 'ordered. It is Danes, affirmed. so P. ment should concur. J., Becker, TRUST Execu COMPANY, VALLEY MISSISSIPPI COLLINS, Estate of E. tor of ROBERT CEA DE Respondent, App v. JOHN SED, FRANKE, ellant.* Opinion January 3, Appeals. Filed Court of
St. Louis Complained Appointment of Referee: Not of in REFERENCES: Exceptions: Appellate Effect: Term Bill for New Trial: Motion attorney’s fees, the action of Practice. In an action for the trial overruling a motion to a referee and set aside on where com- will not be considered no such trial, plaint thereto the motion for new was made though appellant a term bill of since even and, not a bill of up by proper considered, must be Finding of Fact: Confirmed References: PRACTICE: APPELLATE Supported Appeal by Substantia] Disturbed Not Trial Court: OCTOBER TERM, Mississippi Valley Trust Co. v. findings in an action
Evidence. The of fact made approved attorney’s the trial and confirmed fees when occupy be dis- status as the verdict of will not the same *2 supported by appeal if substantial evidence. turbed on Anno); (1926 Error, J., Appeal 3 C. 867 1. Section *Headnote Error, J., Appeal 4 C. Section City Appeal of Louis.— St. from the Circuit Court of Judge. Killoren, lion. H.Wm.
Affirmed. appellant. Burleigh for
Dickmann &
proper
(1)
not a
reference. The
This was
right
denying the
its
to a
erred
court
referring
compulsorily
the cause to a referee.
trial and
138
39
385,
et
791;
Tamm
Mo.
Brown-
al.,
Ice
v.Co.
Ry.
224
it
ing
284
S. W. 789. Even if
439,
Mo.
Co.,
upon amount to
sued
an
that the demands
could be said
long
constitute
account.
Ice Co.
do
account,
Browning v.
392,
791;
39
138 Mo.
S. W.
al.,
Tamm et
(2)
Ry
William Robinson for C. (1) excep- not show bill does The abstract exception a bill of tions; it not state that was ever does indicates that a ever filed; and been filed two the bill to have one-half shows filed, years expiration filing of the time allowed for fails to a bill the abstract state.that the same. Where exceptions time) (and nothing there is before except that which is a the rec- Loyless proper. Mata,-213 Mo. ord Crewell *3 (2) App. 55. was no Mo. There 212 error in Roberts, v. referring petition and answer The the case. show about report controversy; thirty referee’s the in shows items required take evidence, to the and sessions 392 fifteen by “required pages are' filled it. the of the abstract long taking “the account” of a and of an examination necessary” the court and trial was au- account was the referee. Sec. case to R. thorized to send S. sending (3) an error in the was If there case to by appellant failing such error waived to the point aside the to set his motion reference include the appellate trial. The for a new courts in his and motion alleged trial error the court unless not consider will point the the attention of trial to was Young, by Ewart v. for a new trial. 119 Mo. motion App. 225; v. Co., 176 Mo. Railroad Poncot 483; Lynch 232; 156 Mo. v. v. Railroad Coal Hamman Conray Brick Mo. v. 42; v. 276 1; 208 Mo. Johnson 519-520;.Bennett Hastian, v. Davis, 257 Davis, 1069; Shern v. 258 750; Simms, Hill v. 260 S.. Choaster, 819; Tuttle State v. v. Math- 1029; 335; 261 S. Loveland Arnold, W. 741. ison, 261 W. by (4) supported judgment re- the evidence. The The 469 TERM, OCTOBER Mississippi Valley Trust Co. v. by
port confirmed tlie was appel- accordingly. case the such a In entered by supported it is late court will affirm Abies 558; Burton, substantial evidence. Minor v. Mo. Co., 271 Parker St. Louis v. Pillman, City, Riggs, Howe 229; Roloson Mo. reply (5) the error filed, was If no W. 59. by file a to re- failed waived defendant. If ply answer, to defendant’s amended try by proceeding if the the case as to waived the error put allegations and also issue, of the answer been by up for a new failing in his to such error set point raise to now be lie cannot trial, heard court. Meador Malcom, the first time College v. Dock- Mo. 71; Roden v. Helm, Mo. allowing (6) ery, no error There was compensation Rule 34 the St. Louis referee. says referee failed circuit which counsel court with application assignees only comply applies has no a. to referee. attorney’s fees is an C. This
NIPPER, performed Henry alleged been to have for services August Kammann for defendant. B. B. Davis and by Henry petition in four Davis, B. counts. money alleged for services were for Two of the counts and two counts for Davis, have been rendered money alleged rendered defendant due for services August August Kammann, Kammann B. Franke alleged money having assigned interests *4 prior Davis counts to to the in- latter the two due under be- Collins Robert E. afterwards the suit. stitution of Henry assignee while the Davis, B. suit of and came pending and the cause died, court Collins was was plaintiff present executor as in the name of revived estate of Collins. alleged $215, on a claim of is based first count The assigned Davis. There were and Kammann, due this count. four items REPOETS, 216-MISSOURI APPEAL v. Franke. upon assigned by
The second count is based a claim amounting legal Kammann to for $410, serv- Davis, ices. There five items in this count.
The items, third count consists of four and for is alleged perfoxuned by $450, to be due for services August Davis for defendant and consisting The fourth for items, of six is count, ' $375.64. ; general Defendant’s first answer consisted of a application' plaintiff, denial, oral which, appointed the court a referee to hear and determine excepted issues. Defendant the court, ap- and filed a motion to aside set the order afterwards pointing grounds a that the suit referee, was not for one and referee, that no given agree upon any time was one to act as such. pro This motion overruled, was axxda motion for a nunc order tunc to correct the minutes filed. This was Exceptions was also overruled. were saved to these ratings, and bill filed. consisting
Defendant then an amended answer, general plea payment of a and a denial, as to cer- portioix by plaintiff. tain of the items claimed to be due testimony
The was taken and a re- port made. The referee was allowed for his $310 serv- entered favor of ices, against for $1014.15, the defendant was al- $284.95 stenographic taxed as lowed fees. costs From defendant in due time this order ner and man- appealed to this court. assigned record discloses that Kammann his in- quite terest to Davis. The evidence voluminous, and unnecessary, under the circumstances which this presented appeal, case is our consideration on to set in detail. out ' Both Kammann and Davis testified as to .the services and introduced the l'endei'ed, which contracts under portion which lawyers of the amount due was claimed. Three Louis testified the.reasoix- city St.
OCTOBER TERM, Mississippi Valley Trust Co. v. Franke.
able
de-
value of
rendered. The defendant
the services
good
part
part
testimony
nied a
the
offered on
of the
tending
plaintiff,
show
and introduced evidence
attorneys,
and Kam-
Davis
that
conduct
these
respect
questionable
matters
maim,
ques-
whole
to their care. The
that
been entrusted
upon
gone
recom-
tion
into
his
the referee, and
for the
was rendered
mendations
sum above stated.
presented
question
for our consideration
The first
referee in
that the
erred
a
here is
ap-
required the
a case
because
not such
as
case,
precluded
pointment
con-
But
are
of a referee.
sidering
question
com-
defendant
no
because
makes
respect
plaint
in this
his
trial court’s
under the au-
that,
motion for
trial. He contends
new
thority
425, 129
R.
S. W.
of Dean v.
Wabash
required
the court’s attention
he is
call
new trial because
in this
the motion
error
brought
term
this court
bill of
the matter to
he
is not nec-
such circumstances
under
essary
this matter in
attention to
the trial court’s
to call
supra, is no
case,
The Dean
new trial.
the motion for
simply
authority
holds
That
for this contention.
required
exceptions
em-
is not
to be
bill
the trial.
Even
covers
final bill which
bodied
properly
exceptions
before
though
us,
the term
proper.
[Wolf
part
the record
are no
these
&
Kline Cloak Suit
that all They part proper. are part record of the as sidered proceedings at the trial are just the other of the record by here when record exception, matters But bill proper. A motion to part of are not va7 part of rec- is no a receiver cate the mover proper, entitle order to have and in ord 216 MISSOURI y. order tlie reviewed in matter should *6 preserved [Cantwell be in Lead v. Mo. l. c. 97 S. Buerck v. Mid-Nation Co., 41, W. (Mo. Sup.), W. 45.] Iron is true S. Products by here term bill the matter mean that can consider the trial but does not refusing in to vacate the order court’s action complaint in about a receiver when no is made this action the Sternberg Defendant refers to the .new trial. case of Levy, 159 617, 1114, 60 S. W.
v. where the Supreme Court no motion held that new preserve right necessary to to have the trial court’s quoted strike out reviewed, action on motion to l. c. 262. Koch, 253, In O’Connor v. discussing Sternberg the court was a motion to may treated and be strike which was treated out as a proper; dealing we are not of the record but with supra, v. in case. O Koch, such a motion ’Connor very recently Supreme our been-condemned in Court, Leahy l. v. Trust 396, Mercantile c. 401, Judge “The rule in wherein O’Connor Graves not with loc. cit. does accord Koch, 56 Mo. recent ’’ rulings this court. question validity consider the Before we could appointing a in or court’s action over- appointment, ruling motion to set aside the the de- complain of the trial would have fendant ac- court’s in his new thereto motion for tion trial. Sayman (Mo. App.), Wampler [Foster 908; Johnson 464, 190 269Mo. Railroad, Brick 42,Mo. Poncot v. & R. Coal 1190.] 161 support judg- substantial evidence .There was findings of fact a referee and the ment; approved when confirmed a case the trial occupy the same status as verdict of the supported by if disturbed sub- will stantial evidence. supra.] [Kline Cloak & Suit Co. Morris, OCTOBEE TEEM,
In re Lindhorst v. Werner. allowing It is insisted that the court erred comply referee $300, because such referee failed to nothing certain rules of court. the lower There is in this record to indicate such a it be fact. fact,
The Commissioner recommends that be affirmed. foregoing opinion
PEE CUEIAM:—The of Nipper, adopted opinion isC., as the of the court. The accordingly the circuit court is affirmed. Allen, P. J., Becker and concur. Danes, JJ., *7 deceased, IN RE ESTATE OF MARGARETHA LINDHORST, Appel LIN Executor, DHORST, EDWARD Respondent.* EMMA lant, v. WERNER, Appeals. Opinion February St. Louis Court of Filed Taking During 1. GIFTS: Inter Vivos: Not Effect Lifetime of Donor: Testamentary Disposition: gift Wills. If a does not take effect as completed possession an executed or transfer to the donee of title, equitable, during donor, or either the lifetime of the testamentary disposition, good only proved is a if made and as n will. Right Delivery: -: 2. -: Without of Recall: con- Valid. To gift vivos, delivery stitute a valid inter there must be actual subject gift donee, donee, to the or to some one donor, delivery the lifetime of the must made with the part absolutely pres- on the of the donor to intention with the subject gift. and control ent and future dominion over -: -: -: Bills Notes: Evidence: Notes Endorsed Completed Placed with Bank Trust for Donee: Donor and Gift. involving promissory payable the title to certain In an action notes payee decedent, placing upon evidence that endorsed them each usually signature employed the endorsement note over to trans- paper, bank, to such and delivered them a fer the title and ac- receipt declaring cepted notes the banker donee, shortly death to a named at her to be delivered were delivery prior given she told others that decedent to such