Munday v. Clements

Citation58 Mo. 577
PartiesSAMUEL MUNDAY, Respondent, v. DAVID CLEMENTS, Appellant.
Decision Date31 January 1875
CourtUnited States State Supreme Court of Missouri

Appeal from Lawrence Circuit Court.

Henry Brumback, for Appellant, referred in argument to Gen. Stat., 1865, ch. 148, § 2; Stewart vs. Anderson, 6 Conn., 203; Follet vs. Buyer, 4 Ohio St., 586.

Bray & Teel, for Respondent.WAGNER, Judge, delivered the opinion of the court.

This was an action commenced before a justice of the peace on a promissory note, for the sum of seventy-five dollars.

Defendant filed a note in off-set in the Justice's Court and had a verdict in his favor; whereupon plaintiff appealed to the Circuit Court, and on a trial in that court there was a verdict and judgment in his behalf. In the Circuit Court defendant moved to dismiss the appeal from the Justice's Court because there was no final judgment from which an appeal could be taken, and because the affidavit was defective.

Both of these motions were overruled. It is now insisted that this ruling of the court was erroneous, but we are not of that opinion. The record shows a verdict of a jury in the Justice's Court, but no formal judgment was entered thereon. But it has been held from the earliest period in this State, that such failure to enter judgment on the part of the justice will not prevent an appeal to the Circuit Court. (Hazeltine vs. Rensch, 51 Mo. 50 and cases cited.) There is no merit in the objection that the affidavit was not sufficient to warrant an appeal. The affidavit is not copied into the record, but the point raised is that the affidavit stated that the appeal was taken from the verdict and not the judgment of the court. This was not a literal, but was a substantial compliance with the law. The appeal should be from the judgment, but in Justices' Courts the verdict is equivalent to a judgment, and in cases arising before justices of the peace, we will not turn parties out of court on such technicalities.

The case shows that this suit was brought on an overdue negotiable promissory note, and the only question was as to whether the defendant was entitled to have a note allowed as an off set against one of the intermediate owners of the note sued on.

It seems that the note was made by the defendant on the 10th day of October, 1871, payable to one Runyan, and due five days after date. It was assigned to Thornton on the 26th day of the same month, and immediately thereafter assigned by Thornton to J. H. Munday, Sr. Plaintiff's evidence shows that in October or November, 1871, John H. Munday, Sr., received the note from Thornton, who was then the owner of it, as collateral security, and that he continued to hold it till January, 29, 1872, and that on that day, Thornton and John H. Munday, Jr., were talking about making a trade for the note, and that the latter was going to let his father have the note for a debt he owed him; that about the same time he delivered the note to John H. Munday, Jr., upon Thornton's written order.

The plaintiff testified that about the 29th day of January, 1872, the same day on which the trade was made between Thornton and Munday, Jr., he received the note from the latter in payment of an account he owed him, which was more than the amount of the note.

The defendant testified that sometime in February, 1872, John H. Munday, Jr., told him he had the note sued on, and asked him for the money; that he then bought a note against John H. Munday, Jr., which was the note filed as a set-off and that sometime afterwards he saw Munday, Jr., and asked him if he still had the note, and that he replied that he had; that defendant then told him that he had bought...

To continue reading

Request your trial
7 cases
  • Progressive Finance & Realty Co. v. Stempel
    • United States
    • Court of Appeal of Missouri (US)
    • July 14, 1936
    ...... equities, though it contains a false endorsement of the. payment of the matured installment. Munday v. Clements, 58 Mo. 577; Vette v. La Barge, 64. Mo.App. 179; McCorkle v. Miller, 64 Mo.App. 153;. Vinton v. King, 4 Allen 562; Field v. Tibbetts, ......
  • Progressive Finance and Realty Co. v. Stempel
    • United States
    • Court of Appeal of Missouri (US)
    • July 14, 1936
    ...of a note takes it subject to all equities, though it contains a false endorsement of the payment of the matured installment. Munday v. Clements, 58 Mo. 577; Vette v. La Barge, 64 Mo. App. 179; McCorkle v. Miller, 64 Mo. App. 153; Vinton v. King, 4 Allen 562; Field v. Tibbetts, 57 Me. 359; ......
  • Workman v. Taylor
    • United States
    • Court of Appeal of Missouri (US)
    • February 8, 1887
    ...Co. v. Robinson, 27 Mo. 396; Rev. Stat., p. 502, sect. 3011; Morse v. Brownfield, 27 Mo. 224; Hazeltine v. Reusch, 51 Mo. 50; Monday v. Clements, 58 Mo. 577; Freeman on Judgments [3 Ed.] sect. 53; Rev. Stat., p. 510, sect. 3052; Kelley v. Railroad, 86 Mo. 681. Appellant, by going to trial o......
  • Workman v. Taylor
    • United States
    • Court of Appeals of Kansas
    • February 8, 1887
    ...Co. v. Robinson, 27 Mo. 396; Rev. Stat., p. 502, sect. 3011; Morse v. Brownfield, 27 Mo. 224; Hazeltine v. Reusch, 51 Mo. 50; Monday v. Clements, 58 Mo. 577; Freeman on [3 Ed.] sect. 53; Rev. Stat., p. 510, sect. 3052; Kelley v. Railroad, 86 Mo. 681. Appellant, by going to trial on the meri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT