author: GOODE, J.

text:
    MALINDA E. DAMERON, Appellant, v. B. M. HARRIS, Administrator of Estate of J. H. PATTON.
    Division One,
    March 2, 1920.
    1. ACCOUNT RENDERED: Implied Acquiescence and Promise. An account rendered, showing a balance claimed by the creditor, unless objected to by the debtor within a reasonable time, is evidence that the debtor assented to it as correct and of an implied promise to pay the balance shown by it; and the rule applies to principal and agent, and to other persons who have business relations with each other, as well as to merchant and customer, or dealings between merchants.

      2. -: -: Reasonable Time. What constitutes a reasonable time in which to object to an account rendered depends on the ■ circumstances of the particular case. One circumstance is the local situation of the parties. Acquiescence for a whole year, without objection by the female owner of a large farm, in the itemized accounts rendered by her agent, accompanied by a letter explaining her overdraft and the amount credited on her note for money advanced by him, and calling attention to the' balance, together with other letters written in the subsequent months to each other in which reference is made to the state of the account, amounts to an account stated, and in the absence of fraud, mistake or accident forecloses a readjustment.
    3. -: —-: Readjustment: Continuous Account: Fraud or Mistake. Acquiesence in an account stated does not preclude one of the parties from showing that certain items were not embraced in it, if a proper suit is brought to amend the adjustment for fraud, mistake or accident; but such a suit must proceed upon the theory that the account had been adjusted and items omitted which should have been included; if the demand is based on the theory that the account was a continuous one for twenty years, with no adjustment of it at any time, the only question of inquiry is whether there had been periodical settlements within those years, with such acquiescence therein for a reasonable time under the circumstances- as render them accounts stated, and if the facts establish those things the settlements cannot be reopened.
    4. -: Continuous Account: Periodical Settlement: Limitations. The character of an account as a continuous or running one ceases at each periodical settlement thereof, and the Statute of Limitations commences to run from the date of the settlement against the implied promise to pay the balance shown thereby to be due,

      5. -: Account Book: Entries by Amanuensis. Entries made by the agent or under his direction, systematically, in the usual course of business and as minutes of the business, at the time the transactions occurred or as nearly so as the circumstances of the business will reasonably admit, whether made with his own hand or by other persons who wrote in his presence and pursuant to his orders, are regular and original entries, and the book in which they were made is competent evidence, in his favor and against him.
    6. -: -: Contemporaneous. Regular entries in an account book made in the course of business to be competent as evidence and an exception to the rule against hearsay must be made at the time of the transaction noted, or soon enough after the event to be in the nature of res gestae and to render it unlikely that they were the result of a design to defraud, concocted by the entrant after the occurrence. But if they were made immediately following the transaction if it occurred in'the office where the account book was kept, or promptly after the agent’s return thereto from the place where the business was transacted, they are substantially contemporaneous, and competent.
    7. -: Agent’s Compensation: In Excess of Agreement: Acquiescence. Unless the owner assented to a charge of one hundred dollars annually instead of fifty dollars for.the services of her bailiff in managing her large farm and protecting her financial affairs, he was bound by his contract, regardless of the importance and onerousness of his duties. But where the increase was indicated in the itemized accounts rendered, the value of the services far exceeded the compensation, and the evidence clearly establishes that she acquiesced in the increased charge, he is not chargeable with such increase.
    Appeal from Pike Circuit Court. — Hon. Edgar B. Wool-folk, Judge.
    Affirmed (upon condition).

      Hostetter £ Haley for appellant.
    . (1) The referee erred in holding that decedent and .plaintiff agreed on a stated account, and in holding that the account was closed at intervals during decedent’s twenty years’ management on the farm, and in holding that all items of account in plaintiff’s claim which accrued-more than five years before same was filed in the probate court were barred, and the circuit court likewise erred in adopting these views and findings of the referee. (2) The referee erred in not considering the items of the account even on Ms own theory, hack as far as April 25, 1908, at which date he fixed the second break in the continuity of the account, and the circuit court erred in acquiescing- in this position of the referee. “An account is not closed each time a footing- is made and the balance carried to another column.” 1 E. C. L. p. 206, par. 2. A,n account stated does not preclude the party denying its correctness from showing that certain items were not included therein. 1 E. C. L. p. 2201, par. 20; 1 E. C. L. p. 210, par. 7. When it is fairly inferable from the conduct of the parties, while the account is accruing, that it is to be taken as one, then none of the items are barred by the Statute of Limitations unless all are; and if there be any item in the account within the five year period of limitation, then such item will draw all the items antedating such five-year period, so that none will be barred;. and this is true even though all the items are on one side. Chadwick v. Chadwick, 115 Mo. 586; Bang v. Jamison, 66 M|o. 424; Eoberts v. Neale, 134 Mo. App. 612. An account stated cannot become such merely by being presented by the one party to the other and the retention of the same by the latter without objection. If the party to whom the account is rendered has no knowledge of his own interests in the matters contained in the account, and had not the opportunity to acquire knowledge, as to its incorrectness as to omitted items in his favor, then such party is not bound thereby. It is only assent with knowledge which counts. 1 C. J. p. 686, sec. 264; 1 C. J. p. 714, sec. 353. Accounts between persons standing- in confidential relations toward one another will be held open more readily than among persons dealing- at arm’s length; and complicated accounts will be opened up more readily than simple ones in the interest of the one who could not have had full knowledge. 1 C. J. p. 709, sec. 335; 1 C. J. p. 711, sec. 336. (3) The referee- erred in admitting- in evidence the “book account” alleged by defendant to have been kept by decedent, the circuit court sanctioning the ruling. In order to render an account book legitimate evidence, the entries must be contemporaneous with the transactions entered. Nelson v. Nelson, 90 Mo. 463. (4) Tire referee erred in finding on the issue of compensation $100 per year instead of $50 per year and tire circuit court erred in upholding such finding of the referee. (5) In a,compulsory reference, as in the case at bar the Supreme Court is not bound by the findings of either the referee or the circuit court, but can make its own findings from the evidence. It is not even controlled as to the weight of the evidence by the lower tribunals, as in ordinary cases involving issues of fact. Williams v. Railway Co., 153 Mo. 487; Buxton v. Debrecht, 95 Mo. App. 599'; Caldwell' v. Wright, 88 Mo. App. 403; Small v. Hatch, 151 Mo. 300.

      Frank J. Duvall and Pearson & Pearson for1 respondent.
    (1) Every communication sent to M'rs. Dameron by J. H. Patton, containing a statement of their account, or any kind of a statement, together with a statement of the amount of the balance due to her from Col. P'atton, or from her to Col. Patton, and not objected to by Mrs. Dameron within a reasonable time thereafter, constitutes an account stated, up to that date; and none of the items as to any other business transacted by him for her, previous to that date, are open to investigation. Brown v. Kimmell, 67 Mo. 431; McCormick v. Sawyer, 104 Mo. 43; Powell v. Pacific R. R. Co., 65 Mo. 661; Alexander v. Scott, 150 Mlo. App. 222; Grocery Co. v. Hotel Co., 183 Mb. App. 435; Keller v. Olson, 187 Mo. App. 474. (2) The Statutes of Limitations commence to run from the time the account is stated. Estes v. Hamilton-Brown Shoe Co., 54 Mo. App. 550. (3) Col. Patton was a farmer who kept an account book in which he entered the items of the various transactions he had, both with reference to '.he farm of Mrs. Dameron, which he was looking after, and other matters. This account book was properly identified and introduced in evidence. The items entered in it ^ evidences of such transactions in favor of Col. Patton with Mrs. Dameron concerning this' farm. Anchor Milling Co. v. Walsh, 108 Mo. 285; Lyons v. Corder, 253 Mo. 549; Siegelman v. Rodgers, 113 Mo. 649; Schmidt v. Lightner, 185 Mo. App. 548. (4) His book account shows that Col. Patton had made an annual charge of one hundred dollars, as-compensation for his services, and there had never been an objection made by Mrs. Dameron.
   GOODE, J.

Prior to 1893, plaintiffs husband, James Dameron, died, leaving a last will, by which he devised to plaintiff, for her life, a farm of 640 acres, of which 200 acres lie in Lincoln County and 440 acres in Pike County. The farm is two miles south of P'aynesville, in Pike County, where James H. Patton, known in the vicinity as Colonel Patton, resided. He was an experienced aud prosperous farmer and had managed his own affairs well; so on October 1, 1893, plaintiff employed him to take charge of her faun for an indefinite period, as she intended to go to Bowling Green, in Pike County, for the sake of the health of one or more of her children, of whom there were living at that time one son and two or three daughters. Col. Patton was to be paid fifty dollars a year for his services, which began October, 1898, and continued twenty years, and until November 17,1913. Meanwhile plaintiff and her family resided or sojourned for periods not definitely stated, at Bowling Green, Kirksville. and Eolia, places not far away: at Hugo, Oklahoma, Hot Springs, Arkansas, and St. Louis. Col. Patton died in 1914, and. on May 11, 1915, a demand against his estate for $29,209.18', which is the subject-matter of the present proceedings, was presented to the probate court and later was lodged in the circuit court by appeal. The demand is for many items of indebtedness alleged to be due plaintiff on account of money received by Col. Patton for rent of the farm, or portions of it, the proceeds of crops, timber and other articles sold from the farm, which were never accounted for to plaintiff; overcharges for the services of deceased; rentals never paid to plaintiff; damage to the farm to the amount of $2500, caused by cutting down timber trees, contrary to plaintiff’s order; damage in the sum of $3000, due to not rotating the crops to preserve the fertility of the soil, and permitting the fences and other improvements to get out of repair; and for $3500, the value of corn, hay and other products of the farm which lie is alleged to have surreptitiously converted to his own use. Attached to the statement of demand is an itemized account, composed of four hundred and seventy-six debits against the deceased and two hundred and five credits, showing the balance of $29,209.18 in favor of claimant, the total debits- amounting to $47,466.12 and the credits to $18,-256.94.

Defendant’s answer, as administrator of the estate of deceased, states that plaintiff knew what was being done on the farm during the years deceased managed it; that deceased kept a book account of all items of money received by him as plaintiff’s agent and baliff, which showed for what they were received, and his disbursements connected with the management of the farm from the year 1893 to and including the year 1913; that said account covered not only the receipts and expenses of the farm, but money paid by deceased to plaintiff, or on her order during those years.

.The answer also alleged that a true accounting was made to plaintiff' by the deceased yearly, or oftener.

The bar of the Statute of Limitations was pleaded against all items of plaintiff’s demand which accrued prior to the year 1910.

Defendant set up a counterclaim upon allegations that deceased, during the years from 1910 to 1913, inclusive, paid out for expenses in conducting the farm and to plaintiff, or others upon her order, sums in excess of his total receipts from the farm during those years, to the amount of $1140.75, and that these payments were made at the request of plaintiff. An itemized account was attached as an exhibit and referred to in the answer, which showed a balance due defendant, as administrator, of the amount aforesaid.

On account of the multitude of transactions involved in plaintiff’s demand, ranging over twenty years, .the case was referred by the circuit court to Hon. L.H. Blair, who was directed to take testimony regarding the various items of the demand, make a full statement of the account between the parties, together with his findings thereon, and return the same with the evidence, into court. The evidence consisted of the testimony of nearly fifty witnesses and about two hundred and fifty exhibits, in the form of letters which passed between plaintiff and .deceased,-and checks drawn by her on her bank account, or by deceased for payments to her' or others by her order, or for the expense of the farm. The referee found, and the numerous letters in evidence support the finding, that deceased kept plaintiff informed regarding his management of her affairs while he had them in charge; that he reported regularly about the crops raised and sold, collections made, contracts with tenants, the condition of the crops, the clearing of land and the cutting and sale of timber, lumber, and posts, repairs made and the expenditures therefor, the payment of premiums due on fire and life insurance policies held by plaintiff, the sums paid to her daughters and on her debts to other persons, and credits made on a promissory note of plaintiff to deceased; that he stated from time to time the balances of money in his hands belonging to plaintiff and subject to her order; notified her when she overdrew her accountwith.the Clifford Banking Company; that he balanced her account from time to time, and sent her statements of the condition of the account. The referee found further that, by letter and orally, plaintiff, on several occasions. expressed satisfaction with the way deceased had conducted her business, and that the first complaint made by her was on December 5, 1913, which was about some matters deceased explained, in a letter dated December 23, 1913', written in answer to her complaint.

Plaintiff resumed possession and management of the farm in November, 1913.

The referee held all items of the demand which accrued more than five years before May 11, 1915, when the claim was presented in the probate court for allowance, were barred by the Statute of Limitations.

Deceased kept in a book of accounts minutes of his transactions in handling plaintiff’s business, and after his death a copy of said book account, showing the receipts and expenditures of deceased as bailiff, from October 1, 18S3, to November 17,1913, was furnished by the administrator of the estate to Dr. T. E. Garrett, plaintiff’s son-in-law. It was found by the referee that the present demand is based, with few exceptions, on the various items of income from the farm shown by said copy of deceased’s book account, but that credit is not allowed for many of the expenditures and other payments made by deceased and recorded in his book; and that whereas the deceased had entered a charge- of $100’ a year for seiwices, the plaintiff only gave the estate credit for fifty dollars a year, claiming deceased had agreed to serve for the latter sum.

Not only does the itemized Statement attached to the statement of plaintiff’s demand omit a large portion 'of the credits in his favor, which he had recorded in his book account, but it charges him with various debit items not shown ip his book. These debits are for sums alleged to have been received in many ways; rentals collected, sales of produce from the farm, wood, timber, etc., sold by‘deceased or converted to his own use. But most of the sum of twenty-nine thousand dollars and more claimed to be due plaintiff, consists of the balance left after deducting some of the credits shown by the account hook of deceased, and. omitting many others noted as paid by him to plaintiff or for her, or for the expenses of the farm.

After ruling that the Statute of Limitations applied to all items of .the claim which fell due prior to May 11, 1910, the learned referee proceeded to deal with the items charged against deceased in plaintiff’s demand for the subsequent years, to-wit, from May 11, 19101, to May 11, 1915-, and not noted in his book account. Of these items there were sixteen, and the referee rejected twelve of them, amounting to $4963.33, and allowed four, which amounted to $72.50. It thus appears the referee found that during the five years immediately preceding the presentation of plaintiff’s demand, Col. P'atton had become indebted to plaintiff in the sum of $72.50, for receipts not charged against himself in his account book, and that items claimed by plaintiff to the amount of $4963.33: ought not to be charged against the estate. Adding $72.50' to the charges deceased had made against himself during said years in his book, the referee found the total amount of the debits against him for those years was $7111.05. Taking up the counterclaim and considering" the items of credits which the estate of deceased ought to be allowed for money paid by him during the five years to plaintiff or on her order, or for necessary expenses and repairs on the farm, etc., the referee found they amounted to $8,912.26. Deducting the debits charged, $7111.05, from that amount, it was found plaintiff was indebted to the estate in the sum of $1801.21, and .judgment was recommended for defendant and against plaintiff for that amount, notwithstanding the balance found was more than the administrator demanded in his counterclaim. Exceptions were duly filed by plaintiff to the report, and on the hearing of them the court confirmed the report, except as to a few minor items amounting to eighty dollars, which were charged against defendant and in favor of plaintiff, and except, too, the sum of $661.21, allowed by the referee to defendant in excess of the total amount ($1140) demanded by defendant in his counterclaim, which the court disallowed, leaving thereby a net balance of $1060 owing to defendant. Judgment was rendered in his favor and against plaintiff for that amount. Plaintiff appealed from the judgment,

The following errors are assigned: first, the ruling that plaintiff and deceased had agreed upon a stated account at intervals during the twenty years; second, the ruling that the Statute of Limitations had run against all items which accrued more than five years before the presentation óf the demand; third, in refusing to' consider items as far back as on April 25, 1908, if, as the referee found, the account was then settled between the parties; fourth, the admission in evidence; of the entries in the account book of deceased; fifth, the allowance of one hundred dollars a year to deceased for his services, instead of fifty dollars.

The referee found, and the circuit court accepted his finding, that the account between plaintiff and Col. Patton had keen formally stated and settled by them three times during the period of the agency and on these dates: December 1, 1905, April 25, 1908, and January 13, 1913. /One objection made to this finding is that plaintiff had no opportunity to learn whether the statements furnished by deceased were correct; presumably, because she was residing so far away from the farm as to preclude investigation. This fact, though it is not expressly mentioned in the brief for plaintiff, is the only one which stood in the way of. her looking into her affairs and ascertaining whether the statements she. received were accurate.

For a portion of the period of Col. Patton’s agency, plaintiff dwelt near the farm and could easily have made inquiries; but an account of mutual dealings between two parties may be adjusted and settled by one rendering a statement to the other, even if the latter is absent fr'om the place where the transactions occurred; although this circumstance will be considered in determining whether timely objection to the statement was made, thereby preventing it from acquiring the statics of a settled account.

I. An account rendered, showing the balance claimed by the creditor, unless it is objected to by the debtor within a reasonable time, is evidence that the debtor assented to it as correct and of an implied promise to pay the balance as shown. [Powell v. Railroad, 65 Mo. 658; Koegel v. Givens, 79 Mo. 77.] What: constitutes a reasonable time wherein to object depends on the circumstances of the particular case, and, as said, one' circumstance is the local situation of the parties. [Brown v. Kimmel, 67 Mo. 430; Martyn v. Amold, 36 Fla. 446.] At an early day this court held, in accordance with the law elsewhere, that the doctrine of settled or stated accounts, although applied originally only to dealings between merchants, has been extended to other classes of persons who had business relations; a ruling since followed. [Shepard v. Bank, 15 Mo. 144; Brown v. Kimmel, 67 Mo. 430; see, too, McKeen v. Bank, 74 Mo. App. 281.] It applies, as well to the relation of principal and agent,, as to that of merchant and customer. [McCord v. Manson, 17 Ill. App. 118; Ruffner v. Hewitt, 7 W. Va. 585.] Therefore as the rule is no longer confined to mercantile affairs, what was said in one case about the effect of the retention without objection, by a debtor who lived in this country, of statements of dealings rendered by a firm of merchants in England, is in point. In considering those facts the Supreme Court of the United States declared that “when one merchant sends an account current to another residing in a different country, between whom there are mutual dealings, and he keeps it two years without making any objection, it shall be deemed a stated account, and his silence and acquiescence shall bind him, at least so- far as to cast the onus probandi on him.”' [Freeland v. Heron, 7 Cranch, [U. S.] 147.] Treating the same point, it was held that a delay in objecting for two weeks after the reception of his account by a debtor, when the parties lived in the same city, tended to show he accepted it as accurate. [Mulford v. Caesar, 54 Mo. App. 263, 269.] So, it was said “an account which had been presented and no objection thereto had been made after the lapse of several posts, is treated, under ordinary circumstances, as being, by acquiescence, a stated account.” [Powell v. Railroad, 65 Mo. 658.] If the account between plaintiff and Col. Patton was stated by him to her on the three dates mentioned, as the court below found, the facts are that she never objected to the first and second statements, nor to the one of January 13, 1913, except a complaint contained in a letter written by her in December of said year, more than eleven months after she had received the statement; but that complaint was directed against a. small item (the amount claimed being $36¡ and the value found by the referee $5) for wood deceased was alleged to have used and not recorded. Par from complaining of the account rendered in January, 1913, a letter written to deceased July 23,1913, says she felt that neither she nor her business could get along without him and that whenever she was in trouble he would lend her a helping hand. In October, 1913, she said to the deceased that if the farm had not been left to him years before “we would not have a dollar;” and on the same occasion Mrs. G-arrett, plaintiff’s daughter, said in the plaintiff's presence: “Mr. Patton, you have been a father to us. If it had not been for you I don’t know what we would have done.” In view of the foregoing facts we hold plaintiff’s absence from her home did not prevent the statements rendered to her by Col. Patton from becoming evidence from which the finding! might be made that their affairs were adjusted by mutual agreement, no objection having been made by her to the statements.

It is denied the evidence supports the finding that statements were rendered to plaintiff on the dates mentioned, and this denial calls for an examination of the facts. As regards the settlement of December 1, 1905, a letter written by the deceased to plaintiff on that date, after mentioning some particular transactions, said: “I balanced your account to-day and find you have overdrew [sic] $269.76'. I have sent you. and the girls this year about $1750.” And on November 26, 1906, deceased wrote plaintiff another letter with her tax receipts for the years 1903,1904, and 1905 inclosed. Therein he said: “I also send you statement of your account. I sent you a statement last year on December,first, and you had overdrawn $269.76.” (Our emphasis.) Much correspondence passed between the parties after that letter, and in none of them did plaintiff either deny receiving the statement of December 1, 1905, or object to any item of it, or to the balance of $269.76', shown by it to be due deceased. In said letter of November 26th, deceased gave a statement of further transactions since December, 1905', showing that he had paid out $1697,50 in the interval and had received $1695.95, leaving plaintiff overdrawn to the amount of $1.55. In this connection another relevant fact is that the book account of deceased showed the account was balanced December 1, 1905, and the following entry made: “To balance due $269.76.” We approve the finding that the account between plaintiff, and deceased was stated to her on December 1, 1905, and that she acquiesced in the statement and in the balance shown to be owing to deceased.

Regarding the second settlement of April 5', 1908, Ed M. Forgey, a witness who sometimes made entries for deceased in the latter’s book, testified that on said date he balanced the account between plaintiff and deceased, and entered these minutes: “April 25, 1908, to balance $180.55'; April 25, 1908, balance carried to page 250', $180.55;” that at the request of Col. Patton he prepared an itemized list of the transactions between the parties from October 31, 1906, to April 25, 1908. A,s bearing on the question of whether plaintiff received that statement, we notice an excerpt from a letter of deceased of the same date, introduced in evidence by the plaintiff: “Enclosed-please find note of $321, including! int and receipt of $900 to credit on note of $1100, which leaves a balance of $180.55 due you on my account. Thinking perhaps you might need some money on urgent call I have left the amount of $180.55 due you on my books.” A year later, in-1909, plaintiff gave deceased a note for $350 to balance her account which she had overdrawn; and neither in the letter inclosing the note, nor in any other, did she complain that the statement by deceased in his letter, of April 25,1908, of the amount due her ($180.55) was incorrect. We approve the finding that there was a settlement of accounts between plaintiff ánd deceased on April 25, 1908, which was acquiesced in by her and that said settlement showed deceased then owed her $180.55'.

As to the third statement of January 13', 1913, deceased wrote to plaintiff, among other things, as follows: “Enclosed please find statement of account. I have paid out $946.81 since our last settlement. I have received since that time $1194.34, leaving a balance of $284.53 in my hands.” (The referee found the balance stated was too large owing to an error in calculating, and that it. should have been $248.53.) In a letter written December 26,1912, by F. W. Patton, who sometimes acted as amanuensis for the Colonel, he said: “The Colonel says he will send you a statement soon. ’ ’ A statement was sent plaintiff which embraced the items from February 7, 1910, to January 9, 1913, and showed- a balance due deceased of $248. It was accompanied by a letter dated December 9, 1913, which'said: “This statement and the statement I sent you runs back three years. I hope you will find it all O. K. Anything further you wish to know, let me hear from you and we will try to' explain.” The corresponding entry on the account book was this: ‘ ‘ January 13:, 19T3L To balance due $248,531”' Plaintiff introduced in evidence an exhibit headed, ‘ ‘ Statement of Mrs.- M. E. Darner on’s Account,’ which was taken from the account book of deceased. It runs from January 13, 1913, to November 17, 1913, and the first item of January. 13-th is $248.531, the exact amount of the balance shown by the previous statement of January 13, 1913. On those facts we approve the finding that the account between the parties was settled on January 13, 1913. We add that in addition to those formal statements which were found to have been acquiesced in by plaintiff, deceased wrote • her quite a number of letters, in each of which he mentioned a balance in his hands'to her order.

II. It is further said the fact that an account between parties who have had mutual dealings has been stated, does not preclude one of them from proving certain items were not embraced in it. This is true if the proper suit is brought to amend the adjustjj? jj j *j_i • i i i ix ment tor irand, mistake, accident, etc..; but the plaintiff’s demand does not proceed on the assumptin the accunt between her and the deceased had been adjusted and items omitted which should have been included. Her'demand is based on the theory that the account was a continuous one for twenty years with no adjustment of it at any time. This point was adjudicated in a case where .the plaintiff claimed the right to recover for extra work and materials done and furnished by him and not included in his contract. There was found to have been a settlement of the account between the parties covering all the work and materials involved; wherefore the court rejected the contention that the plaintiff could proceed for alleged omitted items “as if no settlement had been made.” The court held that when parties, having mutual matters of account between them, growing out of a contract, deliberately account together and state a balance, the settlement cannot be reopened or gone into except upon proof of fraud or mistake or that certain matters .were intentionally omitted from the settlement. [McCormick v. Transit Ry. Co., 154 Mo. 191, 201.] In another case it was said that “the presumption, is that all previous dealings between the parties relating to the subject-matter of the account, are adjusted.” [Pickel v. Chamber of Commerce, 10 Mo. App. 191, 195.] Even were it conceded, as it is not, that the probate court would have' jurisdiction to open up the -settlement for fraud or mistake, neither in her statement of demand nor other pleading, did plaintiff attack the settlements, but contended throughout there had been none.

III. The second error assigned is for barring by limitation those of the items demanded which accrued prior to May 11, 1910. The character of the account as a continuous and running one ceased at each settle-men^ 0£ ^ an¿ -¿he statute commenced to run from that date against the implied promise to pay the' balance shown by the settlement. [Coudrey v. Gilliam, 60 Mo. 86 ; Estes v. Hamilton-Brown Shoe Co., 54 Mo. App. 543; Gunn v. Gunn. 74 Ga. 555; Harrison v. Hall, 8 Mo. App. 170.] f

Counsel hardly controvert the proposition last stated, but argue as one of- their assignments of error that if there was an adjustment of the account on April 25, 1908, the referee and the court should have considered the items which accrued after said.date and up to May'll, 1910, as being parts of a continuous account from said April 25th, as well as those which accrued after the later date. The account between the parties having been settled January 13,1913-, the referee should not have gone farther back-in considering the various debits and credits. The reason he assigned for doing so was that defendant in his counterclaim requested allowances for disbursements during the years 1910 to 1913, inclusive; that is, both parties were asking for relief regarding transactions during those years. In this respect we think the learned referee and the court below fell into error. Plaintiff did not ask that items back to 1910 be considered save as they were embraced in the entire list back.to- April 25, 1908; or to be more exact, back to the beginning’ of the agency of the deceased in 1803. We cannot say plaintiff would have gained nothing had the referee passed on the transactions of every year after April 25’, 1908, if said date -was to be regarded as that of the last settlement. Maybe plaintiff would have been benefitted by considering-matters between 1908 and 1910. The last settlement was on January 23, 1913, which showed the balance then due the deceased was $248.53.

As shown above, another account running.from January 13, 1913, to November 17, 1913, and covering the remainder of the period of the agency, was rendered. This account was not acquiesced in, at least some of it was not; and the only transactions open to investigation on the merits were of that period. Now every item for the year 1913, which is noted in plaintiff’s demand, corresponds with the statement deceased rendered for that year, except six charges against him, amounting to $351, and twenty credits claimed by him, amounting to $321.84. Tlie referee rejected all the charge items as not established, except two, to-wit, $20 for gravel and $25 due on a note given by the tenant Guy, or $45 for both. All the credits shown on the statement rendered by Col. Patton for the year 1913, and not allowed, him in plaintiff’s statement of demand for said year, were allowed by the referee. The result would be to reduce by forty-five dollars the balance due deceased on November 17, 1913, $1086.09, the sum shown by his statement, leaving* the amount due him $1041.09. .The referee’s finding of $1801.21 was reached by including credits back to 1910, an amount the court cut down to $1060 by rejecting the excess found by the referee above the amount demanded by defendant in his counterclaim and by, charging the estate with two or three small amounts the referee had denied.

IV. The fourth error assigned is the admission in evidence of the entries of deceased in his own favor in his account book, those ag’ainst him being regarded as competent for the reason that, they were admissions opposed to his interest. The argument is that the credit entries were incompetent because not shown fo have been in the handwriting* of the deceased, nor to have been made at the time the transactions they related to occurred. The proposition only affects the affairs between the parties of the year 1913, for we have held the account was balanced and settled on January 13, 1913. The account book was proved to have been one wherein deceased kept a, record. ' of his business affairs, not only those between himself and plaintiff, but also those between him and other persons. His office was in Paynesville, where he lived and where the bank was located in which he deposited money to plaintiff’s account and against which she drew checks. Paynesville was only two miles from the farm, and the conclusion to be drawn from the evidence is that deceased made entries in the book at his office after he had transacted business at the bank or on the farm. Many of the entries he made in person, but he often called on Ed F'or gey, Arthur For gey, and his brother F. W. Patton and his nephew W. L. Patton, to enter items for him. It is in testimony that F. W. Patton wTas accustomed to assist him in keeping this book; also that the Colonel had used the book for twenty years. In a long examination and cross-examination of W. L. Patton about numerous entries the witness testified they were in the handwriting of one or the other of the persons mentioned; that the' book was the one in which the Colonel made the “original entries in all business transactions; ’ ’ that when entries were made regarding deals on the Dameron farm, Col. Patton produced memorandums he had made at the farm at the immediate times of the transactions and would ask the witness to enter them in the account of Mrs. Dameron; that the entries written by the witness were made not at the time of the transaction, “but as close as aman could do so;” that the Colonel did most of his business in the office, when he entered a transaction at the very time it took place, but if hei was out at .the farm he would put it in his book and enter it as soon as he could; that his custom was to do so as soon as he got to the office; that when the entries were made Col. Patton would be present and would direct them. This happened not only when the witness himself, was doing the writing, but also when his father was. Another witness, Ed F'orgey, testified that he wrote in the book for Col. Patton as a matter of friendship; was asked about entries on various pages, said he had made out statements for Mrs. Dameron from the book. Testified also as to various entries in his handwriting; that he had seen the Colonel write entries himself; that it was a book of original entry of the Colonel's business transactions; never kept any other book of account; that the Colonel made the entries from memory. Dr. Garrett, a son-in-law of plaintiff, testified that he went over some of the pages of the book with Col. Patton once or twice, and that the Colonel showed him this book “as a book of his original entries he kept his account in.”

That the entries in question were made by the Colonel or under his direction, systematically, in the usual course of business and as minutes of business, is beyond doubt. We consider it immaterial that many of them were made by other persons, since the testimony shows these persons wrote in the presence of deceased and pursuant to his orders; in other words, they acted as mere amanuenses to relieve him of the distasteful labor of writing. [2 Wigmore, Evidence, sec. 1530, p. 1894; 1 Greenleaf, Evidence (16 Ed.), p. 206; Stanley v. Wilkerson, 63 Ark. 556.; American Surety Co. v. Pauly, 38 U. S. App. 254.]

As regards the time when the transactions were entered as compared with when they occurred, this was shown to be immediately following the transaction if it occurred in the office where the book was kept, or if it did not, as! soon thereafter as the Colonel returned to the office. Regular entries in the course of business to be competent as evidence and an exception to the rule against hearsay, must be made at the time of the transaction’ noted. They must be in the nature of res gestee, or at least written soon enough after the event to render it unlikely they were the result of a design to defraud concocted by the entrant after the occurrence. In Anchor Milling Co. v. Walsh, 108 Mo. 277, it was said the entry to be competent must be written at the time, or nearly so, of the principal fact. Neither the adjudications nor the text-works define with' precision what is meant by “contemporaneous,” in connection with this rule of evidence . Wigmore says to be admissible, “the entry should have been made at or near the time of the transaction recorded — not merely because this is necessary in order to assure a fairly accurate recollection of the matter,, but because any trustworthy habit of making regular business records will ordinarily involve the making of the record contemporaneously. The rule fixes no precise time; each case must depend on its own circumstances.” [2 Wigmore, Evidence, sec. 1526, p. 1892.] Greenleaf states the rule as follows: . “The entry must be fairly contemporaneous with the event recorded, though no precise time can be fixed as the limit.” [1 Greenleaf on Evidence (16 Ed.), sec. 120a, p. 205.] Another treatise says it should be made at or about the time. [4 Chamberlayne, Evidence, sec. 2870.] And again, that it must be ‘ ‘ substantially contemporaneous. ’ * [Id. sec. 2890, p. 4018.] Again, that -it must not be unreasonably remote from the occurrence of the events. [Id-sec. 2890, p. 4020.] It was, of course, impossible for deceased to record in his book transactions at the farm the instant they occurred; although it was proved he kept memorandums of those transactions and from them, or his memory, entered the items in the book as soon as he could do so, usually when he reached his office. We ' hold the book account consisted of regular and original entries which made it competent as evidence.

Y. The fifth assignment relates to the allowance of one hundred dollars a year to deceased, whereas his contract was to serve for fifty dollars. In the several statements rendered by him, including that of 1905, he credited himself with one hundred dollars for his services. It is true the original contract was for fifty dollars, but he appears to have conceived that he. ought to be paid more. Of course unless plaintiff assented to the change, deceased was bound by his contract, regardless of how onerous and important his duties were. But their scope is a circumstance to show plaintiff did assent to an increase. Col. Patton was not only the bailiff of plaintiff in the management of the farm, but the correspondence shows he was her general financial adviser, helped her in the matter of procuring loans, paid her insurance premiums, warned her against her daughter’s spending too much money, notified her about overdrafts at the bank, took up and carried a note of hers which was secured by a mortgage on the farm, when the holder of the note was threatening to foreclose; in short, looked after every interest of plaintiff in the vicinity of the farm. She made no objection to the claim for increased compensation shown {by the statements rendered, and long afterwards expressed satisfaction witli the way deceased had managed her business. No other conclusion is possible, except that the increased credit of one hundred dollars, claimed for years before the agency of the Colonel ceased, was acquiesced in by plaintiff.

It is proper to say that two items in plaintiff’s demand, one for $2500 for damage to the farm by cutting timber and one for $3000 damage caused by non-rotation of crops, were wholly unproved and were rightly ignored by the referee and the court below.

'It is unnecessary to reverse and remand the cause for the error in dealing on their merits with transactions antecedent to the last settlement. We have examined the findings on the items subsequent thereto and accept tbe conclusions of the referee and the court below.

We find that forty-five dollars of charges ought to be deducted from the $1086.09, the amount due deceased on November 17, 1913, as shown by the statement rendered November 19th, leaving the sum due $1041.09. If defendant will remit, within ten days,- said sum of $45' from the judgment, it will be affirmed; otherwise, it will be reversed and the cause.remanded with an order to determine on the merits the several items of debit and credit that ought to be allowed for transactions after January 13, 1913.

All concur.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    W. G. DONOHUE, Appellant, v. SOUTHWESTERN SURETY INSURANCE COMPANY.
    Division One,
    March 2, 1920.
    1. APPEAL: Non-resident Insurance Company: Twenty Days’ Notice. A foreign insurance company, licensed to do business in this State, but having no agent, office or other place of business in the county in which the cause was tried before a justice of the peace, has twenty days, under the statute (Sec. 7568, R. S. 1909), within which to take its appeal from the judgment rendered by the justice, and is not required to take the appeal within ten days after the rendition of judgment.

      2. -: -: Statute. The statute (Secs. 7398 and 7399, R. S. 1909), authorizing process to he served on the Superintendent of Insurance where the defendant is a foreign insurance company licensed to do business, but having no place of business, in this State, does not render the company a resident of the county in which plaintiff resides and in which it has been sued before a justice of the peace, but only confers jurisdiction; as to the time within which it must take an’ appeal from a judgment rendered by the justice, it still remains a non-resident of the county.
    3. -: Affidavit and Bond: Wrong Name: Amendment. An appeal from a judgment of a justice of the peace should not he dismissed because the affidavit and bond therefor were not made in the name of the appellant, if before a motion to dismiss is ruled an amended transcript showing the, appeal had been taken in ■its true name is sent up, and an amended affidavit and bond, made by permission of court and by the same affiant and surety, are filed.
    4.-: Dismissal of case at Return Term. Where the notice of an appeal from a judgment rendered by a justice of the peace was so defective as to constitute no notice, and appellee at the return term filed his motion to dismiss on the ground that no notice had been given, and appellant, before the motion was ruled, by permission of court filed an amended transcript and an amended affidavit and bond, and thereupon the motion was overruled, it was error to call the case for trial and, upon the appellee’s refusal to plead further, to dismiss the case • at said return term, for appellee’s motion to dismiss was not an exercise of his option to try the case 'at said term, but his refusal to plead further was a protest against being forced to trial at a .term at which, under the statute (Sec. 7583, R. S. 1909), the cause was triable only at his option.
    Transferred from Kansas City Court of Appeals. — > Hon. Alonso D. Burnes, Judge.
    Reversed and remanded.

      R. H. Musser for appellant.
    (1) Appeals from the justices of the peace, as well as all appeals, are purely of statutory-origin, and the Legislature has the right to- impose such conditions and restrictions as it sees fiit. 3 C. J. 318,- 319; Sec. 7567, R. S. 1909; Nathan v. Oil Co., 187 Mo. App. 563 ; Bussier v. Sayman, 257 Mo. 303; Eauck v. Merrill, 172 Mo. App. 489; Sidwell v. Jett, 213 Mo. 609; Caruthersville v. Barnett, 149 Mo. App. 162; Petz v. Hoffman, 149 Mo. App. 153; Clopper v. Bradshaw, 163 Mo. App. 587. (2) The notice of appeal in this case was wholly insufficient, and the plaintiff did not by filing his motion to dismiss the appeal and attacking the jurisdiction of the court, enter his appearance to the ease. There was no case of the character described in the notice on the docket of the court; there was no case appealed such as was docketed; the affidavit for appeal, bond in appeal and notice of appeal were all of.the Southern Surety Company case and the substitution allowed did not, if it was correctly done, waive the very plain provisions of the statutes. Secs. 7568, 7570, 7582, 7584, E. S. 1909; Drake v. Gorrell, 127 Mo. App. 6316; Huffman Bros. v. Morris, 1190 Mo. App. 386; Auto Co. v. Figgins, 188 Mo. App. 689; Nobel v. Bocldiurst, 186 Mo. App. 503; Bartschat v. Downey, 172 Mo. App. 636. (3) The appellant could not, by having the justice amend his record, confer jurisdiction on the circuit court; there was no bond in appeal nor affidavit for appeal supporting other than his original record, and no further notice of appeal was given. Clapper v. Bradshaw, 163 Mo. App. 587; Eauck v. Merrill, 172 Mo. App. 489. (4) Causes first stated herein affirmatively show that statutory requirements for the appeal from the justice of the peace were not complied with, so that the circuit court had no authority to further proceed with the case; in addition to these, jurisdiction was not had by said circuit court, for the further reason that the Southwestern Surety Insurance Company was under the law a resident of the State and of each county and township therein. Young v. Niles Scott Co., 12:2 Mo. App. 402; Meyer v. Insurance Co., 184 Mo. 486; Sears on Mo. Corporations, sec. 375; Fitzmaurice v. Turney, 214 Mo. 627; Crutsinger v. Eailroad, 82 Mo. 66; Slavens v. Eailroad, 51 Mo. 310; Harding v. Eailroad, 80 Mo. 661; Eodgers v. National Council, 172 Mo. App. 719. (5) By taking out a license to do business in the State of Missouri, and appointing the Superintendent of Insurance as its agent to receive service of process, defendant acquired a constructive residence in each and every county of the State, so that it had only ten days within which to perfect its appeal from the justice. Rodgers v. National Council, 172 Mo. App. 719; Meyer v. Ins. Co., 184 Mo. 481; Kennedy v. Ins. Co,, 165 Pa. St. 179; Weeron v. Ins. Co., 166 P’a. St. 112; Bur-ridge v. Ins. Co., 211 Mo.. 180; Sidway v. Land & Live Stock Co., 187 Mo. 649; Dougan v. Sun Fire Office, 39 Mo. App.. 676; 19 Cyc. 1254; 12 R. C. L. 35, 50', 57, 64, 78, 108.

      Frost & Frost for respondent.
    (1) If the defendant had an agent in the county transacting its business, then the rule would be different. Young v. Niles Scott Co., 122 Mo. App. 392. This same doctrine has been for years applied to railroads. Slavens v. Railway, 51 Mo. 309; Crutsinger v. Railway, 82 Mo. 64; Fitzmaurice v. Turney, 214 Mo. 626; Julian v. Kansas City Star, 209' Mb. 100. The defendant was a non-resident corporation without any agent in the county and it had twenty days in which to take an appeal. Spangler v. Protective Assn., 172 Mo. App. 255; Sec. 7568-, R. S. 1909. (2)- The lodging of the transcript of the justice gave the circuit court jurisdiction of the cause, and the only object of the notice is to give it jurisdiction of the person. Ford v. Gray, 131 Mo. App. 344; Bartschat v. Downey, 172 Mo. App. 636; Drake v. Gorrell, 127 Mo. App. 636. (3) The motion filed by the appellant in this cause was not motion for affirmance or dismissal for failure to give statutory notice, but was a motion to dismiss the appeal because “the said defendant was and is a resident of Clinton County, State of Missouri, and no appeal was taken or allowed to said defendant at any time within the time allowed'by law” and because “no .affidavit for an appeal or any appeal bond has been made by the defendant to •this action,” and other grounds. This motion did amount to an appearance by the plaintiff and dispensed with the statutory notice. Bartschat v. Downey, 172 Mo. App. 636. These appearances were entirely independent of his appearance on his motion to dismiss. How could plaintiff be heard to enter his objections and exceptions to the action of the court and be found objecting to steps taken by the appellant therein in said cause without appearing in said cause! Furthermore, his motion to dismiss did not confine his appearance for that purpose only, nor did he ask the dismissal on the ground of failure to give notice, nor could he have done so, as a motion on such a. ground would not have been entertained until the next term of court, as' that was the first term after the appeal. Furthermore, the judgment in this cause itself shows that plaintiff was in court for all purposes. (4) Refusing to plead amounted to refusing to make defense. 30 Cyc. 1644. (5) On filing of papers by the justice in the clerk’s office the circuit court becomes possessed of the caulse, and same cannot be dismissed for want of bond and affidavit if appellant file bond and affidavit before case is dismissed. Welsh v. Railway, '55 Mo. App. 599 ; State v. Cook, 33 Mo. App. 57; See. 7580, R. S. 1909.
   BROWN, C.

This cause comes to us upon the certificate of the Kansas City Court of Appeals: that its opinion and judgment sustaining the judgment of the circuit court is in conflict with the opinion and judgment of the St. Louis Court of Appeals in Rodgers v. National Council, 172 Mo. App. 719.

The case is well stated in the opinion of the Kansas City Court of Appeals as follows:

“Plaintiff, on December 2'3, 1916-, in a suit before a justice of the peace in Clinton County, obtáined judgment for $124 against defendant upon a policy of accident insurance. The defendant is a foreign insurance company duly licensed to transact its business in Missouri, but having no local agent in Clinton County upon whom service could be had, and service was made upon the Superintendent of Insurance at Jefferson City in .Cole County. On the 20th day from the rendition of judgment, defendant was allowed an appeal to the Cireuit Court of Clinton County. The appeal was returnable to the April Term, 1917, of said circuit court, and the justice promptly sent up the' transcript and papers to that court.

“It seems that the appeal bond filed in the justice court was in the name of ‘ The Southern Insurance Company’ as principal, instead of ‘The Southwestern Surety Insurance Company,’ and that the notice of appeal that was given, as well as the affidavit for appeal, were made under the caption of the case entitled, ‘W. G. Donohue v. Southern Surety Company.’

“At the April term, plaintiff filed a motion to dismiss the appeal based on two grounds: (1) That no affidavit for appeal and no appeal bond had been filed by the'defendant in the ease. (2) That no appeal had been taken or allowed to said defendant within the time allowed by law. At the same time defendant filed a motion to have the justice send up a correct transcript of his record, and this was done. Upon its appearing that the appeal had been allowed by the justice to the Southwestern Suretjr Insurance'Company, the court permitted the corrected transcript to be filed, and thereupon, the defendant by leave of court, filed a correct affidavit and appeal bond, and later the court per-mitted defendant, through its attorney who made the affidavit and who was also the sole surety on the appeal bond, to amend same by inserting the word ‘Insurance’ after the words ‘Southwestern Surety’ and before the word ‘Company’ in the defendant’s name wherever the same appeared in said affidavit and bond.

.“Plaintiff’s motion to dismiss was then overruled. Thereupon the cause was called for trial and the plaintiff refusing to plead further, the court dismissed tbe case. Plaintiff then appealed.” [Donohue v. Southwestern Surety Insurance Co., 202 S. W. 272.]

I. The controlling question in this case, and the one upon which it has been certified to us by the Kansas City Court of Appeals, is whether or not a foreign insurance company having no agent, office or other place of business in tbe county, in which the cause was originally tried before a justice of the peace, must take its appeal,from the judgment of the justice within ten days from the time of its rendition or has twenty days for that purpose. This depends entirely upon the question whether or not the Insurance Company is, for that purpose, a resident or non-resident of the county within the meaning of the following provision of Section 7568, Revised Statutes of 1909: “The appeal must be made within ten days after the ju.dgm.ent was rendered, but if a non-resident of the county where the suit shall be instituted, the party shall, in all cases of appeal allowed by this article, have twenty days to make such appeal. ” It is contended by the Insurance Company that it comes within the terms of the clause last quoted, and that therefore its appeal taken within twenty days was timely. There can be no doubt of the correctness of this proposition if the word “non-resident” is to be construed according to its literal meaning, but the appellant contends that, for the purpose of this appeal, the respondent acquires the status of residence by virtue of certain statutory provisions to which we will presently refer.

Foreign corporations generally are prohibited from transacting business as such in this State without complying with certain prerequisites and obtaining from the Secretary of State a license therefor, and establishing and maintaining an office for the transaction of their business in this State where legal service may be obtained upon them. [R. S. 1909, sec. 7040.] Foreign insurance companies doing- business in this State, being under direct supervision of tbe Insurance Department, are required (Id. sec. 7042) to file with the Superintendent of the Insurance Department a written instrument or power of attorney appointing and authorizing the Superintendent of the Insurance Department to acknowledge or receive service of process issued from any court of record, justice of the peace or inferior court, and upon whom such process may be served in all proceedings instituted against them. This last provision, it is contended, makes the foreign insurance company not only a resident of the State for all the purposes of any such legal proceeding, whether involving the service of legal process or not, but also a resident of each particular county as distinguished from all others. The plaintiff may leave his home where the defendant Insurance Company stands waiting at his door,- and seek his remedy wherever he may find an atmosphere favorable to his cause. As we have stated in Meyer v. Insurance Company, 184 Mo. l. c. 489: “An individual can reside in only one county at a time, whereas the statute makes a foreign insurance ..company a resident of every county in the State for the purpose of a suit against it.”

Assuming that this' proposition correctly states the meaning of the statute under consideration in its application to the question of jurisdiction then before the court, we are still far from determining; its application to the question in this case, which is whether the defendant, being already in court, was entitled to twenty days in which to make its appeal. It cannot be contended that the statute in question, without using* the word resident or residence in any form, or any equivalent words, has made the insurance company a resident of each county in this State for all the purposes implied in the omitted word. The statute which authorizes process to- be served on the Superintendent of Insurance, upon which the jurisdiction is founded in this case (R. S. 1909, sec. 7398; also Id. sec. 7399), gives jurisdiction in cases where the defendant is a non-resident of the county in which the plaintiff resides, to a justice of the peace of any township in such county where he may be found, and where the defendant is a nonresident of the State, to any justice of the peace of any county in the Staté wherein defendant may be found. None of these statutes, by conferring jurisdiction over the non-resident, brings him into the county or State for any other purpose. So far as the time for taking his appeal is concerned he remains a non-resident of the county still. The non-resident of the county who comes into the jurisdiction is served and judgment rendered against him. "When he desires to appeal, his distance from his home is taken into account and the law grants him time on that account. It extends the same clemency and favor to the non-resident of the State who is caught within the jurisdiction. The foreign insurance company, as far as, this law. is concerned, stands on the same footing. It is forced into the jurisdiction as a condition for the transaction of business in the State, but is not by the words or any reasonable implication of the law excepted from the statutory grant of favor as to the time allowed for his appeal. The plaintiff as we have said might leave his own home and go to the most inaccessible county in the State to bring his suit, but the Legislature reasonably and justly permits the defendant time to go and return for the purpose of taking his appeal.

This intention is shown in the very section we are now construing (Section 7042): “In case such process is issued by a justice of the peace or other inferior court, the same may be directed to and served by any officer authorized to serve process in the city or county where said Superintendent shall have his office, at least fifteen days before the return day thereof, and such service shall confer jurisdiction.”' "While- in other cases ten days only are required between the service and return day, fifteen days are expressly allowed in this State-wide proceeding. In this the Legislature expressly recognizes its status of non-r’esidenee.

We' think- the appeal was taken in time. The Kansas City Court of Appeals arrived at the same conclusion in an opinion in which it cites and reviews the authorities applicable and in which’we-fully concur, and which we adopt as our'own. [202 S. W. 272,] " What we have here written is only to suggest a different standpoint from which the question may be' approached.

II. The judgment of the justice of the peace from which the appeal to the Circuit Court for Clinton County was taken was against this respondent, and the appeal was returnable to the April term of the circuit court. This appellant appeared in the ’ circuit court at that term and filed his motion to dismiss ^he appeal, assigning as grounds therefor that no affidavit or recognizance for appeal had been filed before the justice. The defendant at the same time filed a motion for a rule upon the justice to send up an amended transcript, which showed that the appeal had been allowed in the proper name of the appellant, and thereupon a hearing was had and the circuit cóurt made an order permitting the true name of the defendant to be inserted in the affidavit and bond, which was done by the defendant’s attorney who made the affidavit and was sole surety on the bond, and the cause was thereupon permitted to proceed.

We do not think there was any error in this. It was done in compliance with the terms of Section 7580, Revised Statutes 1909, which provides that “no appeal allowed by a justice shall be dismissed for want of an 'affidavit or recognizance, or because the affidavit or recognizance made or given is defective or insufficient, if the appellant or some person for him will, before the motion to dismiss is determined, file in the appellate court the affidavit required, or enter into such recognizance as he ought to have entered into before the allowance of the appeal, and pay all costs that shall be incurred by reason of such defect or omission, with pespect to such affidavit or recognizance.”

This statute speaks, for itself. The circuit court obtained its jurisdiction from the allowance of the appeal by the justice, and thenceforth it was its duty to determine whether the appeal had been properly taken and to determine how its statutory jurisdiction should be exercised. The fact that these deficiencies were supplied by amendment to the original affidavit and recognizance could make no difference, as all the parties affected by the alteration were before the court and bound by its action in connection with their own.

III. A more serious question is presented by the action of the circuit court in dismissing, the plaintiff’s action at the return term of the appeal.

Section 7583, Revised Statutes 1909, provides: “If the appellant fail to give notice of his appeal when such notice is required, the cause shall, at the option of the appellee, be tried at the first term, if he shall enter his appearance on or before the second day thereof, or, at his instance, shall be continued as a matter of course until the succeeding term, at the cost of the aPPe^an^ 5 hut no appeal shall be dismissed for the want of such notice. "When, however, the appellee enters his appearance and demands trial as provided for by this section and the appellant fails to appear, the judgment on motion of appellee shall be affirmed. ’ ’

The only notice of the appeal from the justice of the peace in this case consisted of a written statement that the “Southern Surety Company” had taken an appeal from the judgment of Joseph Brown, a justice of' the peace, on the 23rd day of December, 1916 for--dollars and costs in favor of plaintiff and against the Southern' Surety Company - returnable at the April term of the Circuit Court for Clinton County. That this notice was so defective as to constitute no notice under the statute seems to us to be evident. It was signed “Southern Surety Company.” The name bore no natural relation to the defendant, which Is an insurance company by nam]e as well as in fact, and-not a surety company at all so far as appears in the record. The description referring to its location contained no synonym of “Southwestern,” which performs -that office in the name of the defendant. While it is not probable that the plaintiff' was an habitual litigant and could therefore guess that it referred to the suit of the insurance company whose policy he held, we are not at liberty to depart fromi a rule which requires the essential elements of legal process to be stated, and not left to mere inference. The object of the requirement of reasonable certainty in the statement of a fact as notice of its existence in legal proceedings is to avoid the possibility of concealment !in cases where concealment may be practicable and desirable. We think it would be dangerous to hold that this paper is sufficient notice of the appeal of this case. Some such idea was probably in the mind of the .Legislature when, instead of providing a procedure for cases in which the appellee did not know of the appeal, it included all cases in which the notice required by law had not been given.

Although this section is somewhat complicated in its construction it plainly provides that if the appellee shall appear on or before the second day of the return term the case shall, at Ms option, be tried at that term, and that if he shall-appear at the return term and demand trial, and the appellant shall not appear, the judgment shall, upon motion of the appellee, be affirmed. The question presents itself whether, in this case, the appellee exercised his option to try the case. His appearance consisted in the filing of a motion to dismiss the appeal on other grounds than the failure to give the statutory notice, and his statement that he would not plead further. Whatever else this might mean, it was not a demand for trial at that term. The utmost that we can assume is that it indicated his purpose not to try at that term. He had come to exercise his right to have the appeal dismissed unless his opponent should file a sufficient affidavit and recognizance before his motion should be- determined. [Id. Sec. 7580.]' The appellant elected to do this, thereby confessing that the motion of the appellee was well taken, and it now contends that its filing was not only a general appearance in the case, but an exercise of the option to try a.t that term. We do not think so.

When the amended affidavit and recognizance were filed and the plaintiff’s motion to dismiss the appeal was overruled, the court mlade the following entry: “The said cause coming on for trial, the plaintiff refused to plead further than the motion to dismiss, whereupon the court ordered said cause to be dismissed. Whereupon, the said cause was dismissed of record in said court.”

This refusal to “plead further than the motion to dismiss” amounted to nothing more than a'protest against being forced to trial at a term in which the cause was triable only at his option. H:e had been successful in forcing the appellant to perfect its appeal by amendment to the affidavit and recognizance, and thereupon the case stood as if the appeal had been well taken and no notice given. It was error to dismiss the cause for failure of the plaintiff to proceed to prove his case which he was under no duty to do at that term. This error appearing upon the face of the record the judgment of the circuit court must be reversed, and the cause remanded for further proceedings; and it is so ordered.

Ragland and Small, (7(7., concur.

PER CURIAM': — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All of the judg,es concur.


author: RAGLAND, C.

text:
    ALINDA H. VORDICK, Appellant, v. AUGUST H. VORDICK, Deceased; WILLIAM H. HAUSHULTE, Executor of Will of AUGUST H. VORDICK.
    Division One,
    March 2, 1920.
    1. JURISDICTION: Usurpation. Under a constitutional government the acts of a court not' within its powers prescribed' by the organic . law are usurpations, and when done by a court of last resort may become a gravo menace.
    2. -: Divorce: Other Issues. Divorce per se is not one of the cases named in the Constitution in which an appeal lies to the Supreme Court, and if it has jurisdiction to review a judgment for divorce on its merits it must b'e because it involves some issue which brings it within the enumeration of specific cases wherein it is given appellate jurisdiction.

      3.-: '-: Alimony: Amount in Dispute: How Ascertained. Where the trial court granted the wife a divorce and alimony in the sum of $5,000, and the only possible ground upon which the Supreme Court has jurisdiction of her appeal is that the amount in dispute exceeds $7,500, the fact that it has jurisdiction on that ground must affirmatively appear from the record made in the trial court; and if the petition does not allege any definite amount she is entitled to recover, either as alimony or attorney’s fees, the entire record should be examined, to determine what is the amount in dispute.
    4. -: -: -: -: Inadequate Award: Social Station. Where the plaintiff in her petition in the divorce case did not allege the amount she was entitled to recover as alimony or attorney’s fees and its prayer was that she be adjudged such alimony as in the nature of the case and the circumstances of the parties may be right and proper, and in her motion for a new trial she complained. that the amount of alimony awarded her was inadequate and less than she was entitled to under the law and the evidence and further that she should have been adjudged an amount sufficient to yield her an income that would support her according to the station in life of herself and defendant, the amount in dispute on her appeal is the difference between the $5,000 adjudged to her and either (a) the adequate amount to which she is entitled under the law and the evidence, or (b) an amount that would yield an income sufficient to support her according to her station in life; and unless it affirmatively appears from the entire record that the amount she was entitled to recover for one or the other of these reasons, is an amount in excess of $12,500, the Supreme Court has no jurisdiction of her appeal — there being no other ground on which jurisdiction is invested in said court except the one possible ground that the amount in dispute exceeds $7,500. But she could have fixed appellate jurisdiction in the Supreme Court, by claiming in her petition an amount in excess of $7,500 over and above the amount awarded he-r by the trial court, unless the allegations made it apparent that such claim was fictitious and colorable only.
    5. DIVORCE: Dower After Decree for Wife. The wife’s inchoate dower in her husband’s real estate is unaffected by a decree granting her alone a divorce and awarding her alimony in a named sum of money, which is not adjudged to be in lieu of dower.
    6. Estate by the Entirety: Cotenants Upon Divorce Decree. Residence property, bought by the husband and by his bounty conveyed to him and his wife as tenants by the entirety, by virtue of a decree of divorce in her favor becomes the property of the two equally as tenants in common.

      Appeal from St. Louis County Circuit Court. — Hon. G.. A. Wurdemcm, Judge.
    Transferred to St. Louis Court of Appeals.

      Homer Hall for appellant.

      Muench, Walther & Muench for respondent.
   RAGLAND, C.

This action was begun April 3, 1914, in the Circuit Court for St. Louis County, by Alinda B. Yordick against August H. Yordick for divorce and alimony. Plaintiff and defendant were married September 11, 1913, and separated March 7, 1916. At the time of their marriage plaintiff was a widow, about fifty years of age, and resided at Troy, New ¡York, where she had a married daughter living; the,defendant was a widower, about sixty-five years of age, having also a married daughter, and resided in the City of St. Louis. They first met on a cruise through the Orient in the spring of 1912. On their return to their respective homes a correspondence ensued, resulting in their marriage. Soon after their marriage defendant purchased a home in an attractive residence district in University City, St. Louis County, paying therefor $12,500. It contained eleven rooms and was a two and a half story structure. There they began housekeeping. They kept no servants, hut plaintiff with some assistance from defendant did all of the housework, including the cooking, washing, ironing, etc. Except for recreation trips they lived there continuously until their separation. They spent four weeks in Michigan in July, 1914, and about two months in California in the summer of 1915. When they were at home she never went anywhere except to church and to meetings of certain of its auxiliary societies. Their brief life together was tempestuous from the beginning. Prom the first the defendant indulged in violent outbursts of temper, during which he applied offensive epithets to plaintiff and not infrequently struck her. • Immediately after these explosions the domestic atmosphere invariably cleared, the defendant asked forgiveness, which was apparently freely granted, and periods of unalloyed felicity followed. Defendant’s violent exhibitions of passion were occasioned by his jealousy, produced noj doubt by a disordered imagination, and as time went on they recurred with more frequency. At first the plaintiff was the passive recipient of his violence, later she defended herself with a right good will, and in the last encounter it cannot be said that she got the worst of it. While -she carried a ‘ ‘ black eye ’ ’ for a week or more, his spectacles were broken, his “whole left side scratched up” and he was laid up in bed where he “suffered all night for two or three days. ” As a result of this pitched battle plaintiff left and went to a hotel, but, as fierce as it was, her affection for defendant, apparently, was not appreciably lessened thereby, for a. day or two afterward she stole unobtrusively into their home find pinned a note to- his pillow, containing this brief message, “I love you.” On finding this he went in pursuit. An interview followed, at which she gently insinuated that he should settle on her some of his property as a peace offering. This he could not abide, and the breach became final.

The evidence most favorable to plaintiff’s contention tends to show that at the time of the trial the defendant owned the following property: Notes and securities, bearing six per cent annual interest, to the amount of $30,000; a forty-six acre tract of land two miles west of Clayton in St. Louis County, of the estimated value of $38,800; a fifty-acre tract on the Beliefontaine Road north of the City of St. Louis, of the estimated value of $121,500; and two lots in an outlying industrial district of the City of St. Louis, of a value estimated at from $30,000' to $40,000. All of this real estate was unimproved and the values put on it by witnesses were concededly speculative. Parts of one or more of the larger tracts were rented to gardners and yielded an annual rental of from five hundred to six hundred dollars. The rents received from the remainder were nominal. In addition to the property just mentioned, there was the residence which the defendant purchased for $12,500, and which appellant in her brief tacitly admits, he caused to be conveyed to her and himself jointly, thereby creating in them an estate by the entirety. The evidence also discloses inferentially that the plaintiff at the time of her marriage to defendant was, and at the time of the trial continued to be, possessed of some means, the extent of which, however, even approximately, is not suggested. The defendant was a physician, but had retired from active practice, only occasionally treating an old patient. His income from this source must have been meagre.

The petition as ground for divorce sets out with particularity indignities of the character hereinbefore indicated. It also alleges that the defendant is seized and possessed of real and personal property and money of the value of $250',000 and that the plaintiff is without adequate means of support and for the prosecution of this suit. The prayer is for divorce and “that the court .will adjudge to her such alimony, support and maintenance out of the property of the defendant as under the nature of the case and the circumstances of the parties may be right and proper.” The answer admitted the marriage, denied the other allegations of the petition and set up counter indignities.

The court found the issues for plaintiff and that she was the innocent and injured party and granted her a divorce. It also adjudged that as and for alimony in gross she recover the sum of $9,000, on the condition that ■ within twenty days, thereafter she relinquish hei inchoate dower in defendant’s real estate, and that failing, so to do "she recover 'the sum of $5',000. She declined to relinquish her inchoate dower so that the judgment for alimony in gross is for the sum of $5,000,

Plaintiff filed a motion for a new' trial on tht grounds, among others, that the alimony and attorney’s fee are “wholly inadequate and much less than the plaintiff is entitled to under the law and the evidence,” and that the judgment ought to be for an amount sub ficient to give plaintiff a net income which, would provide for her support and maintenance in accordanct with the station in life of plaintiff and defendant. The motion was overruled, and an appeal from the judgment awarding alimony and,, attorney’s fees was granted to this court. Pending this appeal the defendant has died and the cause has been revived in the name of his executor.

The principal, assignment of error is that “the court erred in awarding to plaintiff an inadequate and insufficient amount as alimony in gross and for attorney’s fees.”

It would be easier to dispose of this appeal on the merits than on a question of jurisdiction, but, as has often been said and it does not hurt to repeat it occasionally, under a constitutional government the 'acts of a court not within the powers prescribed by the organic law are usurpations,' and when done by a court of last resort may become a grave menace. To determine our jurisdiction before proceeding is, therefore, at all times an imperative duty. Divorce per se is not one of tht cases named in the Constitution in which an appeal lies to this court. If we have jurisdiction to determine this appeal on the merits, therefore, it is because that, notwithstanding it-is for divorce, it has some attribute that brings it within the enumeration of the specific cases wherein we have appellate jurisdiction. From a view of the entire record, the only possible one is that the amount in dispute, exclusive of costs, exceeds seven thousand five hundred dollars. And if we have jurisdiction on that ground it must be because, that fact affirmatively appears from the record made in the trial court. [Kitchell v. Railway Co., 146 Mo. 455-457; State ex rel. v. Gill, 107 Mo. 44, 49; State ex rel. v. Reynolds, 256 Mo. 710-717; Tobacco Co. v. Rombauer, 113 Mo. 435 ; Huntington v. Saunders, 163 U. S. 319.]

The petition does not allege any definite amount that plaintiff is entitled to recover either as alimony or attorney’s fees. Its prayer is that the plaintiff be adjudged such alimony as under the nature of the case and the circumstances of the parties may he right and proper. The entire record, however, should be looked to in order to determine the amount in dispute; the petition is not conclusive in that respect. [Vanderberg v. Gas Co., 199 Mo. 455.] In the motion for a new trial plaintiff complains that the amount of alimony awarded to her is inadequate and less than she is entitled to under the law and the evidence, and further that she should have been allowed an amount sufficient to yield her an income that would support her according to the station in life of plaintiff and defendant. As the trial court awarded plaintiff $5,000 alimony, the amount in dispute is the difference, if any, between that amount and, either the adequate amount to which plaintiff is entitled under the law and the evidence, or an amjount that would yield her an income sufficient to support her according to her station in life. On the question of jurisdiction, therefore, it is for us to determine whether it affirmatively appears from the entire record, including' the evidence, that, either the adequate allowance to which plaintiff is entitled under the law and the evidence, or an amount sufficient to yield her the income mentioned, is in excess of $12,500.

An examination of the evidence discloses in a general way that at the time of the trial defendant was sixty-seven years of age, that he had passed the productive period of his life and that while his property was estimated, by those in sympathy with plaintiff’s contention as to its value, at from $110,000 to $120',000/ more than three-fourths of it consisted of unimproved non-income-producing real estate for which there was no market except a speculative one. The residence property for which defendant soon after the marriage paid $12,500, being through his bounty held by plaintiff and defendant as tenants by the entirety, by virtue of the decree of divol'ce became the property .of the two equally as tenants in common. Plaintiff’s inchoate dower in the remainder of ,the real estate was wholly unaffected by the decree, and, by reason of his age, it could, at the time of the trial, have been reasonably anticipated that before the lapse of many years it would become consummate, as it in fact has since this appeal was taken. Of the remaining property, consisting of $30',000 in notes and securities, $12,500 is nearly half. Neither to the accumulation of this, nor to that of any of defendant’s property, did plaintiff contribute in the slightest degree, either in money or labor, or in sacrifice or thought. Such contribution cannot, therefore, furnish a basis for giving her a moiety or any other definite part of his estate as it did in Gercke v. Gercke,: 100 Mío. 237. However, she is entitled to have sufficient alimony to recompense her for the protection and support lost to her by defendant’s breach of the marital obligation ending in the decree of divorce. From the facts in evidence it does not appear that the value in money of such protection and support necessarily exceeds $12,500. Appellant suggests that a just recompense therefor would be an amount sufficient to furnish her an income that would support her1 according to her station in life. Let it be conceded. She did not lose her home by reason of the divorce, and. the evidence does not show directly or by necessary inference that the income from1 the $12,500- would not support her in that home, or in another obtained with the proceeds of the sale of her interest in it, according- to the. style and manner of living adopted by plaintiff and defendant during their marriage. Defendant’s gross income out of which he supported him;self and wife was approximately $2400' a year. If, instead of awarding plaintiff alimony' in gross, the court had required defendant to pay her annually during her life one-half, of his income, or $1200', the present valué thereof-, according to the Carlisle tables of mortality adopted by statute in this State for certain purposes, would be less than $12,500', Upon any reasonable vie^fr of1 the- evidence as a whole, it does not affirmatively appear that plaintiff is necessarily entitled to, or that she claimed in the court below, alimony in gross in excess of $12,500. The evidence does not show the extent of plaintiff’s means, and for that reason the adequacy or inadequacy of the allowance of $500' to her for attorney’s fees has not been considered in connection with the entire judgment for $5500, of which it is a component part.

This case presents a striking instance of the difficulty often encountered in determining from the record the amount in dispute when jurisdictional. Prom the very nature of the controversy an examination of the evidence to determine the amount -in. dispute involves to some extent a consideration of the merits, and the conclusions reached of necessity include the holding that appellant on the facts in proof is not entitled to alimony in gross in excess of $12,500. This difficulty would have been obviated had plaintiff made claim to some definite amount in her petition, or elsewhere of record, in the court below. The amount so claimed, if in excess of $7,500, over and above the amount awarded by the court, would have fixed appellate jurisdiction in this court, unless it was apparent that such claim was fictitious or colorable merely, and in this case it probably would not have been so regarded. [Cherry v. Cherry, 150 Mo. App. 414, 167 S. W. 539; State v. Gill, supra; Tobacco Co. v. Rombauer, supra.]

As it does not affirmatively appear from the entire record that the amount in, dispute, exclusive of costs, exceeds $7,500, this court is without jurisdiction of the appeal. It is ordered that the cause be transferred to the St. Louis Court of Appeals.

Brown and Small, GO., concur.

PEE C’UBIAM: — The foregoing opinion of Eagland, C., is adopted as the opinion, of the court.

All of the judges concur.