J. Thomas & Son v. Brown , 168 Mo. App. 667 ( 1913 )

OPINION.

FARRINGTON, J.

There were no declarations of law asked or given by -the court from which to ascertain the theory on which the case was decided. Where the trial court, sitting as a jury, makes a finding and renders a judgment in a cause originating in a justice’s court where there are no written pleadings to show the theory on which the parties presented the case, and in the absence of any declarations of law to mark out the theory on which the circuit court rendered its judgment, such a finding and judgment must not be disturbed if from an examination of the record the appellate court finds any substantial evidence tending to show any reasonable theory on which the judgment may stand. [Freeman v. Foreman, 141 Mo. App. 359, 125 S. W. 524.] This court must assume that the trial court committed no error, and in the absence of pleadings and declarations of law, if there is any substantial evidence on which the judgment may stand, we must assume that the trial court believed that evidence and. made its finding and rendered its judgment upon that theory. [Bowser v. Atkinson, 161 Mo. App. 450, 143 S. W. 75; Neil v. Cunningham Store Co., 149 Mo. App. 53, 130 S. W. 503; Whitener v. Scoggins, 152 Mo. App. 343, 133 S. W. 90.]

The record before us presents but one theory upon which this judgment could have been rendered, namely, that the defendant Brown, husband of the interpleader, was a nonresident of the State, or that he was about to remove his property and effects out of the State with intent to change his domicile, and that therefore his wife cannot claim under section 2185, Revised Statute 1909'.

The trial court made a finding — incorporated in the judgment- — -which shows, as contended by the parties here, that the theory on which the- judgment whs rendered was that Brown was a nonresident or was about to move out of the State with the intent to change his domicile, and both parties treated such finding as decisive of the case; therefore, if there was any substantial evidence to support that finding, then under the rule stated by the Kansas City Court of Appeals in the case of State ex rel. Fowler v. Chaney, 36 Mo. App. 513, and again in the case of Lindsey v. Dixon, 52 Mo. App. 291, the judgment would stand. The judgment, being based on this theory, is erroneous because there is no evidence to support it; nowhere in the record do we find any competent evidence that Brown was a nonresident of Missouri or that he was about to move out of the State with the intent to change his domicile. The most the evidence discloses is that Brown left his home in Monett saying he would not return and that his whereabouts up to the time of the trial was not known to any of the witnesses who testified. It is true, witness Nelson testified that he received an inquiry from the M. K. & T. Railway Company concerning Brown and that the letter was addresséd from some 'point in Texas, but that was no evidence that Brown was then, or ever had been, in Texas or that he was about to change his domicile out of Missouri. Hence the judgment, under the cases last referred to, is wholly unsupported by the evidence.

In this connection we desire to state that while it is not decisive of the question in this case, as hereinbefore shown, we are not favorably impressed with the rule laid down in the cases last cited, and believe that the better rule to be adhered to is that announced by the St. Louis Court of Appeals in the case of Martin v. Barnett, 158 Mo. App. 375, 138 S. W. 538, which we understand would allow the wife to claim under the statute where the husband has absconded or absented himself from his usual place of abode even though in doing so he may have left the State; but, as the question in this case is determined on the lack of. any evidence to sustain the judgment, and as the appellate court must review the case on the same theory on which it was tried below and submitted here, it is unnecessary for us to certify the cause to the Supreme Court by reason of our disapproval of the rule declared by the Kansas City Court Appeals in the cases mentioned. The judgment is reversed and the cause remanded.

All concur.