Landy v. Kansas City

Missouri Court of Appeals

Landy v. Kansas City

58 Mo. App. 141, 1894 Mo. App. LEXIS 279

DecidedApril 30, 1894

StatusPublished

This text of 58 Mo. App. 141 (Landy v. Kansas City) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Landy v. Kansas City, 58 Mo. App. 141, 1894 Mo. App. LEXIS 279 (Mo. Ct. App. 1894).

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Opinion

Ellison, J.

The plaintiffs are husband and wife and brought this action against defendant city for damages to real estate, alleged to be owned by the plaintiffs. On trial below the court refused to hear the evidence of the husband. The court, afterwards, concluding such ruling was error, sustained plaintiff’s motion for new trial. From the order sustaining the motion for new trial defendant has appealed.

The title to the real estate was in the wife by ordinary deed, not as her separate estate. In such ease the husband has an interest in the property and should be admitted to testify as a party in interest. Fugate v. Pierce, 49 Mo. 441; Cooper v. Ord, 66 Mo. 428; Steffers v. Banes, 70 Mo. 399; O’Bryan v. Allen, 95 Mo. 68; Brownlee v. Fenwick, 103 Mo. 420; Whalen v. Baker, 49 Mo. App. 290.

But it is principally argued that the plaintiffs showed by other witnesses the facts which were sought to be established by the testimony excluded. This will not cure the error. If the points sought to be established had been conceded or if they had been, or [145]*145had become during the trial, points about whieh no substantial difference existed or, over whieh there was no dispute, it could very well be said that the exclusion was harmless error. But the matter here concerned the main issue for trial and we can not allow defendant the privilege of practically choosing the witnesses with ‘whom plaintiffs must prove their case. For aught we know the witness excluded might have been the one to whom the jury would have given most credit.

It would perhaps have been better if the petition had shown in what way plaintiffs were owners of the real estate; but we can not see that the mere allegation of ownership, without more, made of them,- in effect, tenants by entirety. Nor do we agree with appellant’s contention that the property was the separate estate of the wife. "We are satisfied with the court’s action in granting a new trial and affirm the judgment.

All concur.

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Ellison, J.

The plaintiffs are husband and wife and brought this action against defendant city for damages to real estate, alleged to be owned by the plaintiffs. On trial below the court refused to hear the evidence of the husband. The court, afterwards, concluding such ruling was error, sustained plaintiff’s motion for new trial. From the order sustaining the motion for new trial defendant has appealed.

The title to the real estate was in the wife by ordinary deed, not as her separate estate. In such ease the husband has an interest in the property and should be admitted to testify as a party in interest. Fugate v. Pierce, 49 Mo. 441; Cooper v. Ord, 66 Mo. 428; Steffers v. Banes, 70 Mo. 399; O’Bryan v. Allen, 95 Mo. 68; Brownlee v. Fenwick, 103 Mo. 420; Whalen v. Baker, 49 Mo. App. 290.

But it is principally argued that the plaintiffs showed by other witnesses the facts which were sought to be established by the testimony excluded. This will not cure the error. If the points sought to be established had been conceded or if they had been, or [145]*145had become during the trial, points about whieh no substantial difference existed or, over whieh there was no dispute, it could very well be said that the exclusion was harmless error. But the matter here concerned the main issue for trial and we can not allow defendant the privilege of practically choosing the witnesses with ‘whom plaintiffs must prove their case. For aught we know the witness excluded might have been the one to whom the jury would have given most credit.

It would perhaps have been better if the petition had shown in what way plaintiffs were owners of the real estate; but we can not see that the mere allegation of ownership, without more, made of them,- in effect, tenants by entirety. Nor do we agree with appellant’s contention that the property was the separate estate of the wife. "We are satisfied with the court’s action in granting a new trial and affirm the judgment.

All concur.

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Bluebook (online)

58 Mo. App. 141, 1894 Mo. App. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landy-v-kansas-city-moctapp-1894.

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