16 Mo. App. 178 | Mo. Ct. App. | 1884
delivered the opinion of the court..
The petition contains two counts on promissory notes, and one for money paid by the plaintiff to the defendant’s use. The verdict and judgment were for the plaintiff on all the counts.
The amended answer alleges that the defendant’s former wife, a daughter of the plaintiff, had sued him for divorce, in which suit he had filed an answer and cross-bill. That, during the pendency of that proceeding, the present plaintiff and defendant entered into an agreement, by which the plaintiff was to cancel and surrender to the defendant the notes here sued on, and was to release him from all liability on account of the matters charged in the petition, and was further to pay the defendant the sum of $8,500 in cash, upon the execution of a conveyance by him to his said wife, at the termination of said suit — whether the decree rendered therein should be in favor of one party or the other — of all his marital rights, claims, and demands, and of all rights, claims, and demands, of whatsoever nature, in and to the property of his said wife. That in accordance with said agreement, upon the termination of the divorce suit, the defendant executed and delivered the conveyance stipulated for, and the plaintiff paid him the sum of money promised; but through accident, mistake, or oversight, the said notes and evidences of indebtedness were not
On May 12, 1882, the defendant filed his motion for a dismissal of the cause, “ because the same has been instituted and is prosecuted without the knowledge, consent, or authority of the plaintiff.” This motion was supported by the defendant’s affidavit to the effect that “ he has good reason to believe and does believe, and does so aver, that the above entitled cause has been begun by Henry A. Clover, the attorney herein, without the knowledge, sanction, or authority of the plaintiff herein, and against her wishes. And he does believe, and does so aver, that if advised thereof, she would not sanction the same.” No other affidavit or proof was offered in support of the motion, nor was any leave asked for or given, to file additional proofs. On the same day the motion was overruled. There were some irregularities in this proceeding, but on the whole we do not perceive any error which would justify a reversal. By Eevised Statutes, section 3558, “ motions in a cause filed in term, shall be filed at least one day before they may be argued or determined.” The law, on its face, imposes a duty of diligence on the party filing the motion. At the same time it secures to both parties the benefit of one entire day’s ¿reparation for the argument and submission. If the position of the case on the docket will admit of the statutory delay it would be a wrong against the mover, as well as against the adverse party, to pass upon the motion without that delay, unless this is consented to at the time. But if the motion be manifestly insufficient on its face and not entitled to serious consideration, by reason of its inherent irrelevancy or frivolousness, there can be no such error as would be fatal toa judgment, in disposing of it at any time. The customary rule in practice requires that affidavits or other proofs in support of a motion must be filed with it; otherwise, leave must be obtained at the time to file them within a specified time afterwards. If •■>o such leave be given, the motion must be disposed of as
We here copy from the statement filed by the respondent, so much of the testimony as seems to be material to oiir present purpose: —
“John ]R. Picton, the appellant, testified substantially that during the pending of the divorce suit he had no conversation with Mrs. Valle. Had conversation with Judge Clover, attorney for his wife, Mrs. Zoé Vallé Picton, in her suit for divorce against the witness at the office of appellant in May, 1881. Judge Clover stated (says the witness) that if he would withdraw certain accusations in the pleadings, that his client’s (Zoé Vallé Picton) friends would assist him financially. Witness referred Judge Clover to his attorney with respect to the matter. Witness stated to Judge Clover that he did not want to make any money out of it. He Avanted to pay some obligations and be released from all con*182 nection with the family. Judge Clover brought up the fact, that he (the witness) owed Mrs. Vallé a large sum of money, which the agreement would wipe out, and the whole thing would be settled quietly. All the obligations between myself and the family, and the connection were to be severed permanently in every respect. He (Judge Clover) said that whatever arrangement was made, that I would be expected to sign a deed releasing all my right, title and interest in my wife’s property.
“ Had no further conversation with Judge Clover in regard to that matter until after the divorce was granted, then he approached me about signing the deed, and said he was waiting for my signature. Signed the deed and delivered it and the cash money was paid by Mr. Finkelnburg. Mr. Garesché, the witness, and Judge Clover were present when the money was paid.”
There was other testimony which tended to show that an agreement was finally made between the attorneys of the parties, respectively, whereby the defendant was to surrender, by conveyance, all interest in his wife’s property, and the plaintiff was to pay him $8,500 ; and that these conditions were finally consummated by the parties on both sides. It was also shown that in the year 1874, long before the commencement of the divorce suit, the defendant and his wife had conveyed to the plaintiff as trustee, for the use of the wife, all her property rights, and whatever interest he had or could have in the same.
Of the instructions given for the defendant, one, numbered 2, was as follows: “The court instructs the jury that the execution and delivery of a deed furnishes a sufficient consideration for a promise, whether the grantor in the deed had or had not any interest in the property conyeyed, or sought to be conveyed thereby.” The. court gave, also, of its own motion, the following: —
“ Of its own motion the court instructs the jury that the deeds read in evidence here, and admitted to have been*183 executed and delivered by the defendant to a trustee for his wife, before the commencement of the proceedings for divorce, passed out of the defendant all interest which he then had in his wife’s estate, and barred him from asserting thereafter, iu virtue of his marriage, any interest in any estate which his wife might thereafter acquire. To authorize a finding (under defendant’s instruction No. 2, given by the court) that the deed executed and delivered by the defendant after the termination of the divorce suit, furnished a sufficient consideration to support the alleged agreement for the surrender by the plaintiff of the notes and causes of action here sued upon, the evidence should satisfy the jury that, notwithstanding the prior deeds hereinbefore mentioned, the defendant asserted, and the plaintiff conceded, that the defendant upon the termination of the divorce suit, might have some interest in his wife’s property then in possession, or thereafter to be acquired, which the deed to be delivered under the agreement would deprive him of. The evidence must satisfy you that this assertion and concession were in good faith to give an actual and not a colorable consideration for the agreement. And if you believe, from all the evidence and circumstances given in evidence here, that such consideration was only pretended, and that the real consideration for such agreement (if you find the same was made by the plaintiff’s agent for her and with her authority), was, that the defendant would withhold an answer in the suit for divorce, which, if filed and pressed, would have defeated her application' for the divorce, or would have shown that she was not an innocent and injured party, then such agreement was utterly and wholly void, on the grounds ■of public policy, and you should find against the defendant.”
The defendant was entitled to all the benefit of his own testimony to the effect that the agreement in contemplation, if made, was to “ wipe out” his indebtedness to the plaintiff. There were some conflicts in the testimony on this point, but the defendant was none the less entitled
Mr. Garesché testified that, as counsel for defendant in the divorce suit, he was opposed to the setting up of a defence proposed by Mr. Picton, and so “ obtained permission to confer with Judge Clover, to stop it, and to see if' we could not make an arrangement which, while it would not be collusive in the eye of the divorce law, at the same
Some other points are made on alleged errors in the proceedings below, but inasmuch as the same matters are not at all likely to arise in any further disposition of the cause, there is no need of elaborating them here. For error in the instruction given, as stated, the judgment is reversed and the cause remanded.