Iron Mountain Bank v. Armstrong

Decision Date20 June 1887
Citation4 S.W. 720,92 Mo. 265
PartiesIron Mountain Bank, Appellant, v. Armstrong
CourtMissouri Supreme Court

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

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 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 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 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 the evidence, the verdict should have been for the defendant."

Which motion was, by the court, sustained. Thereupon, plaintiff excepted to this ruling of the court, and filed its declination to retry said cause; or to proceed further therein, as follows: "The court, having granted a new trial in this cause, plaintiff comes and refuses to further proceed with said cause in this court, preferring to stand on its rights, and excepts to the action of the court, in setting aside the verdict and granting a new trial. This the plaintiff, accordingly, in order to comply with the law and the decisions of the Supreme Court of this state, now demands, and asks the court to enter such final judgment, instanter, herein, as it may see fit, so that it may be able to file its bill of exceptions and appeal to the Supreme Court as speedily as possible."

Whereupon the court ordered the cause dismissed, for want of prosecution, which was accordingly done, and, thereupon, the plaintiff filed his motion to set aside said judgment of dismissal, the parts of which, deemed material, are as follows: "Because the said verdict in its favor was, in all respects, valid and proper, and should not have been vacated, set aside, or disturbed; because no error appears in the record of, or was committed in, the proceedings, upon the trial of the cause, warranting or entitling defendant to a new trial of said cause; because the instructions given by the court to the jury were in all respects proper and legal, under the pleadings and evidence adduced upon the trial of said cause; because the evidence at the trial was competent, relevant, and fully supported the verdict; because the plaintiff, after a just and fair observance of all legal forms and requirements, and the proper administration of the law by the court and jury, had obtained said verdict, and should not have been deprived of its rights to enjoy its fruits, unless for manifest error, and as none such appeared, or was committed therein, the same should have stood, and because the final judgment entered herein, on plaintiff's refusal to proceed further, precludes plaintiff from any and all recovery, upon, or by reason of, the cause of action set forth in its petition, and the same will be wholly lost to plaintiff, if said judgment be...

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