Laun v. Ponath
Decision Date | 07 March 1904 |
Citation | 105 Mo. App. 203,79 S.W. 729 |
Parties | LAUN et al. v. PONATH et al. |
Court | Missouri Court of Appeals |
79 S.W. 729
105 Mo. App. 203
LAUN et al. v. PONATH et al.
Kansas City Court of Appeals. Missouri.
March 7, 1904.
TRIAL—CHANGE OF VENUE—INJUNCTION—FILING OF BOND—CONTINUANCE—DILIGENCE OF COUNSEL.
1. Where a court ordered a new bond to be filed in an injunction suit within 10 days, and within that time the venue was changed to another county, the court to which the case was transferred should not strike out the bond filed within the 10-day period, though after the change of venue.
2. In an action on notes, where the plaintiffs notified the defendants to produce the notes in court, it was within the discretion of the court to refuse a continuance for failure of defendants to produce the notes in court, where the answer stated that they had been hypothecated, and where plaintiff had made no effort to procure them from the person to whom they were alleged to have been hypothecated.
Appeal from Circuit Court, Osage County; Jno. W. McElhinney, Judge.
Action by Frederick C. Laun and another against Edward H. Ponath and another. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.
Thos. M. & C. H. Jones and Crites & Garrison, for appellants. C. D. Corum, for respondent Ponath.
BROADDUS, J.
In August, 1902, the plaintiffs commenced an injunction suit to restrain defendants from proceeding to foreclose a certain deed of trust which plaintiff Laun had executed to secure the payment of certain notes payable to defendant Ponath. Among other allegations was one that the said notes were barred by the statute of limitations. A temporary injunction was issued by two judges of the county court. The proceedings were begun in the Maries county circuit court, and when the case came up for hearing the defendants moved to dissolve the injunction; alleging, among other matters, the insufficiency of the bond. The court refused to sustain the motion to dissolve, but made an order upon plaintiffs to give a new bond, to be filed within 10 days. Within the time fixed, the plaintiffs filed the required bond. But before this was done there had been an order changing the venue to the Osage county circuit court. Before the beginning of the term of court in the latter county, the plaintiff gave the defendant Ponath notice to produce the said notes at the coming trial. The purpose for which the notes were to be used was to show if the credits on them had prevented the bar of the statute of limitations, the notes themselves having been executed for more than 10 years. When the case came up in the last-named court, the bond for injunction, for some cause, was held invalid. Before proceeding to trial it appeared that the defendant had not produced the notes, giving as an excuse for not doing so that he had hypothecated them to one Mrs. Anna P. Holsman, who was then in court. The plaintiffs...
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