Moeckel v. Heim
36 S.W. 226
Mo.
1896
Check Treatment
Sherwood, J.

This cause has been transferred to-this court by the Kansas City court of appeals.

We adhere to the ruling announced in Henry v. Sneed, 99 Mo. 407, that where a husband is made the-conduit and mouthpiece of the fraud of others, and in furtherance of that fraud prevails upon his wife to sign a note and incumber her property, that there a court of equity, in the absence of other evidence, in order to unearth that fraud and to expose it in all of its details, will, ex necessitate rei, and upon a familiar common law principle, respecting evidence of fraud, permit both husband and wife to testify as to the conversations had between them in regard to the transaction.

In this case the judge of the lower court heard the testimony aforesaid, saying he would pass upon its admissibility at the conclusion of the case, but he did not do so; on the contrary he made no ruling on the admissibility of the evidence until he set forth his findings of fact in the decree he rendered in favor of defendants, when he, for the first time; excluded all evidence of conversations between plaintiff and her husband.

*581Plaintiff in her motion for new trial called attention to this point, and, the motion being overruled, she saved her exception, and this was all she could do, for it must be vexatiously obvious that, until the court announced its ruling on the evidence, there was nothing to except to, and not until the decree was announced was plaintiff informed as to what ruling was made.

To require plaintiff to except in advance in anticipation that the ruling might be against her, would seem a trifle exacting and somewhat unreasonable; and every lawyer knows that no one can except to a judgment or decree, and that the only course to pursue when a judgment or decree is rendered, is for the party against whom it is rendered to file a motion for new trial. This is what plaintiff did, and this was all she could do.

“Who does the best his circumstance allows,
Does well, * * * angels could no more.”

In the quite recent case of Utassy v. Giedinghagen, 132 Mo. 53, on a like point of practice, Bubo-ess, J., speaking for the court, holds similar views.

Inasmuch as we hold that the evidence was admissible, and that plaintiff excepted as soon as opportunity offered, we reverse the decree and remand the cause.

All concur except Baeclay, J., who dissents.