Young v. Hudson

• Citation: 99 Mo. 102,12 S.W. 632
• Parties: YOUNG v. HUDSON.
• Decision Date: 02 December 1889
• Court: United States State Supreme Court of Missouri

12 S.W. 632

99 Mo. 102

YOUNG v. HUDSON.

Supreme Court of Missouri.

December 2, 1889.

WRIT OF ERROR — ATTACHMENT — BANK CASHIER — POWERS — ASSIGNMENT OF ACCOUNT.

1. Rev. St. Mo. 1879, § 439, which provides that, upon determination in favor of plaintiff of a plea in the nature of a plea in abatement, putting in issue the facts alleged in an affidavit for attachment, the cause shall proceed, and that proceedings upon the plea shall be reviewable by appeal, does not authorize their review by writ of error, as a longer time is allowed for error than for appeal.

2. A bank cashier may indorse to himself, and sue on, a note payable to the bank.

3. It is no objection to suit by an assignee of an account in his name that no consideration for the assignment is shown.

4. Error in admission of evidence purely cumulative, on trial by the court, is not ground for reversal, where the findings are sustained by other unchallenged evidence.

Error to circuit court, Cass county; NOAH M. GIVAN, Judge.

The action is based on three demands, stated as separate counts, two of which are upon promissory notes made by defendant to a bank, and the third is upon an account for merchandise sold, all alleged to have been regularly transferred to plaintiff. The proceedings began by attachment based on several grounds. There were two trials, — the first, on defendant's plea, denying the grounds of attachment; the second, on the merits. Both resulted in favor of plaintiff. After the trial of the issue in abatement, defendant moved for a new trial, which being denied, he filed exceptions, and took an appeal to this court. No disposition of the appeal appears to have been made, further than may be inferred from the subsequent trial of the cause on the merits at a later term. Defendant then moved for new trial, and saved exceptions to the adverse ruling on that motion. Afterwards he sued out this writ of error.

Woolridge & Daniel, for plaintiff in error. Railey & Burney, for defendant in error.

BARCLAY, J., (after stating the facts as above.)

1. Plaintiff objects to the consideration of defendant's exceptions at the trial on the plea in abatement, insisting that they are not properly subject to examination upon writ of error. Our statute (Rev. St. 1879, § 439¹) regulating such proceedings is not altogether free of ambiguity respecting the proper time and effect of steps to be taken by a defendant for a review. But bringing into view the law previously in force, as interpreted by this court, and endeavoring to give effect to the apparent purpose of the present enactment, we consider its fair import to be that upon a finding for plaintiff on the attachment issue the cause shall proceed to judgment on the merits, as indicated in the first part of the section, without prejudice to defendant's right to have his exceptions to the proceedings on the plea in abatement reviewed upon appeal taken after the latter judgment. Looking at the section in its entirety, we think the law-makers did not intend by it to declare that the proceedings in the case should be suspended to await the result of an appeal on the plea in abatement, when the finding thereon was for the plaintiff. Such a delay might prove entirely unnecessary. Should defendant succeed upon the merits, that disposition of the cause would ordinarily be as satisfactory to him as a finding in his favor on the preliminary issue in abatement. It would...