Loessing v. Loessing

BOND, J. It is insisted by the learned counsel for appellant, that the new trial granted by the lower court was error for the reason that upon the undisputed facts, respondent could not recover in this proceeding: First, because it pertains to a matter already adjudicated between the same parties in a court of competent jurisdiction; secondly, because the rents appropriated by the husband were used by him for family purposes, and, presumably, for the use of his wife with her [498] assent, wherefore, she had no right to recover them from his estate. If appellant’s motions in this respect are correct and applicable to the undisputed facts of the record, it would be our duty to reverse the order of the trial court, from which this appeal is taken. Haven v. Missouri R’y Co., 155 Mo. loc. cit. 229. The answer to the position taken by appellant as to the former adjudication of the matter in issue in this cause is, that by its express terms the decree in the partition suit expressly excluded from its judgment the issue as to the right of the parties therein to recover one-half the rents of the lands held in common by the husband and wife all of which had been collected by the latter anterior to March, 1898. It' is true, the decree in that cause recited the appropriation by the husband of all said rents to his own use, but his right to do so in the premises was left wholly una judged by the terms of said decree. This sufficiently appears from the consideration of the language of the decree itself; hence, it was not necessary for the trial court to have considered the recitals of the memorandum of the judge who gave that decree. But, conceding for the argument, that such memorandum formed no part of the record in this case (94 Mo. loc. cit. 47), the appellant is in no position to urge a misreception in consequence of its admission in evidence, for no ruling was made upon his objection to- it and consequently no exception taken thereto at the time, which would have been necessary to present any question for review on this appeal. We conclude that the first ground urged by appellant against the award of a new trial in this cause is unsupported by the record. II. As to the second contention of appellant, it is sufficient to say that the evidence in this case does not conclusively show that the husband acted as the agent of his wife in collecting the entire rents of the land owned by them jointly: hence, we can not say that the case is controlled by the doc [499] trine applicable to such a relation between husband and wife. Long v. Martin, 152 Mo. 668. On the other hand, there was evidence upon which a finding might have been rested, that the appropriations of the wife’s rents by the husband was without her consent manifested in the way required by law, and, hence, he was chargeable therefor. Winn v. Riley, 151 Mo. 62. It being thus apparent that the defense grounded on the assumption that in the matter of collecting such rents, the husband was acting for the wife, depends solely upon a weighing of the evidence and finding of the facts thereby established. The award of a new trial, presumably because the trial judge changed his mind about the probative force of the testimony, is not a matter for review by us; for under a recent ruling of the Supreme Court, appeals from such rulings present only questions of law for review and do not authorize us to pass on the weight of the evidence, nor overrule the lower court in the legitimate exercise of the discretion vested in it to award new trials on the ground that the verdict is opposed to the weight of the evidence. When that is so, and the record shows a substantial conflict in the testimony, no case is made for review. Haven v. Missouri R’y Co., 155 Mo. loc. cit. 229. The result is that the award for a new trial in this case is affirmed and the cause remanded. All concur.