4 S.W. 720 (Mo. 1887), Iron Mountain Bank v. Armstrong

Citation:4 S.W. 720, 92 Mo. 265
Opinion Judge:Ray, J.
Party Name:Iron Mountain Bank, Appellant, v. Armstrong
Attorney:Broadhead & Haeussler for appellant. C. H. Krum and Ellerbe & Hicks for respondent.
Judge Panel:Ray, J. Sherwood, J., concurs specially.
Case Date:June 20, 1887
Court:Supreme Court of Missouri
 
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Page 720

4 S.W. 720 (Mo. 1887)

92 Mo. 265

Iron Mountain Bank, Appellant,

v.

Armstrong

Supreme Court of Missouri

June 20, 1887

Appeal from St. Louis City Circuit Court. -- Hon. Wm. H. Horner, Judge.

Affirmed.

Broadhead & Haeussler for appellant.

(1) Plaintiff's instruction correctly states the law of this case as it has been settled by this court. Iron Mt. Bank v. Armstrong, 62 Mo. 70; Tumalty v. Bank, 13 Mo. 276; Farmers' Bank v. Garten, 34 Mo. 119, 122. (2) The pleadings tendered the proper issue, to-wit: Did the defendant, under the law and facts shown, indorse the note in suit? (3) The instructions of the court must be all taken together; they constitute the entire charge. McKeon v. Railroad, 43 Mo. 405; Whalen v. Railroad, 60 Mo. 327; Karle v. Railroad, 55 Mo. 476; Davis v. Brown, 67 Mo. 315; Noble v. Blount, 77 Mo. 235, 241. (4) The trial court erred in sustaining defendant's motion for new trial and in setting aside the verdict of the jury and the judgment therein. (5) Proper practice was had in order to review upon appeal the action of the trial court in granting a new trial. Davis v. Davis, 8 Mo. 66; Gilstrap v. Feltz, 50 Mo. 428; Blanchard v. Woolf, 6 Mo.App. 200; State ex rel. v. Burns, 66 Mo. 227.

C. H. Krum and Ellerbe & Hicks for respondent.

(1) The sole issue is whether defendant did indorse the instrument set forth in the petition. It follows that, if evidence not relevant to this issue was admitted, its admission was erroneous, and an instruction which presented to the jury some other issue for their determination would be equally erroneous. (2) The evidence at the trial left it undisputed that defendant did not indorse the instrument described in the petition. Hence, either (a) the verdict was not supported by any evidence; or (b) if there was evidence to support the verdict such evidence was improperly admitted, not being relevant to the issue made by the pleadings. In either case the verdict was properly set aside. (3) The instruction given for plaintiff should not have been given. There was no issue in the pleadings whereon such instruction could have been based, nor was there any evidence to support the same. The giving of this instruction caused the reversal of the former judgment. 62 Mo. 62. (4) Defendant offered evidence relevant to the issue made, and none as to any other. The verdict of the jury indicated that the jury did not comprehend the question submitted to them, either upon one theory or the other. If the cause was properly submitted to them their verdict should have been five thousand dollars, and ten per cent. interest, or nothing -- in fact they found a verdict for five thousand dollars with six per cent. interest. The trial court, in granting a new trial, properly exercised its discretion. (5) It is respectfully submitted that it is not proper that appellant be afforded any relief in this court. The record shows that no issue was tendered defendant involving any of the facts recited in the instruction given for plaintiff. Hence, defendant was not required, and, in fact, made no attempt, to offer evidence tending to negative any of the matters recited in such instruction. It is submitted that no judgment can be entered, based upon the matters recited in the instruction, until defendant has had opportunity to submit evidence thereon. (6) This appeal should be dismissed. The order from which appellant has appealed was not a final judgment; the order sustaining the motion for new trial was not a final disposition of the cause, nor did the court's action on the motion to set aside such order affect or determine appellant's cause of action, or his right to prosecute the same. Appellant's declination to further prosecute was unnecessary and voluntary. Hence, neither the order of dismissal nor the order sustaining the motion for new trial can be appealed from. State v. Burns, 66 Mo. 227; McDonough v. Nickerson, 46 Mo. 35; Byers v. Butterfield, 33 Mo. 376; State v. Smith, 65 Mo. 467; Boggess v. Cox, 48 Mo. 278.

Ray, J. Sherwood, J., concurs specially.

OPINION

[92 Mo. 268] Ray, J.

This is a suit by the plaintiff, as holder, against the defendant, as endorser, of a negotiable promissory note, wherein the makers, Murdock & Dickson, promised to pay five thousand dollars with interest at ten per cent. per annum, after maturity. The case has been in this court once before, and is reported in 62 Mo. 70, when it was reversed and remanded on account of erroneous instructions.

On a retrial of the cause, plaintiff filed an amended petition, as follows:

"By leave of court, now comes plaintiff, and for amended petition states that at the dates hereinafter named it was a corporation duly incorporated under and by virtue of the laws of Missouri. And John J. Murdock was doing business under the style of Murdock & Dickson.

"And for its cause of action plaintiff states that, on the sixth day of August, 1873, said John J. Murdock, by his said firm style of doing business, made, executed, and delivered, for value received, his promissory [92 Mo. 269] note of that date, herewith filed, whereby, for value received, he promised to pay, sixty days after said date, to the order of David H. Armstrong, the defendant herein, the sum of five thousand dollars, at the Third National Bank, St. Louis, Missouri, with interest at ten per cent. after maturity.

"That, thereupon, the said defendant, Armstrong, did, for a valuable consideration, indorse, transfer, and deliver said note, by and through his duly authorized agent, to one F. Sieberman, who, for value, did indorse and deliver same to plaintiff, who is still the lawful holder thereof, for value, before maturity.

"That, afterwards, at the maturity of said note, the plaintiff caused the same to be presented to the maker thereof, and payment demanded, which was refused, and due protest was made, and notice of all which was given duly to defendant, Armstrong, and payment thereof demanded of him, which he failed to make, and said note remains wholly due and unpaid; wherefore, plaintiff prays judgment for the sum of five thousand dollars, with interest

Page 721

thereon from the eighth day of October, A. D., 1873, the date of demand and protest aforesaid, together with the statutory damages and all costs."

To which defendant filed his answer, duly verified by oath, as follows:

"For answer to the petition as amended by interlineation, the defendant denies that he indorsed, transferred, or delivered the note sued on to one Sieberman, or to any one, or that said Sieberman delivered the said note, as indorsed by said defendant, unto said plaintiff. The defendant denies that he ever indorsed the note sued on, and denies that notice of the non-payment of such note was ever given to him."

The retrial was had before a jury, upon these pleadings, and the evidence, and instructions, herein-before [92 Mo. 270] noticed, and resulted in a verdict for the plaintiff (October 31, 1884) for $ 8,318.35. Whereupon, the defendant filed his motion for a new trial, the parts of which, deemed material, are as follows: "Because the court erred in giving instructions to the jury; because the instruction asked by plaintiff, and given by the court, was not based upon any issue in the pleadings, or upon any evidence adduced at the trial; because the instructions given were inconsistent and incompatible with each other; because the verdict was against the evidence, and also against the weight of evidence; because the verdict was contrary to the law and the evidence, and because, upon...

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