Barge Resort v. Brooke

• Decision Date: 31 March 1847
• Citation: 10 Mo. 531
• Parties: THE BARGE RESORT v. WILLIAM BROOKE.
• Court: Missouri Supreme Court

10 Mo. 531

THE BARGE RESORT

v.WILLIAM BROOKE.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM THE ST. LOUIS COMMON PLEAS.

CROCKETT & BRIGGS, for Appellant.

B. F. THOMAS, for Appellee. 1. That the judgment in this cause ought to be affirmed, at the costs of the appellant, because the bill of exceptions does not purport to contain all the evidence given in the court below. Foster & Foster v. Nowlin, 4 Mo. R. 18; Hughes v. Ellison, 5 Mo. R. 110; Vaughn v. Montgomery, 5 Mo. R. 528; Magehan v. Orme & Speers, 7 Mo. R. 4. 2. The court below did not err in refusing to let R. M. Strother testify in this cause. 3. The court below did not err in refusing to give the instructions prayed by defendant's counsel. 4. The court below did right in overruling the defendant's motion for a new trial.

SCOTT, J.

This was a proceeding under the statute concerning Boats and Vessels, against the Barge, for services rendered on board said boat as watchman. Brooke, the plaintiff, recovered judgment, from which the Barge has appealed to this court. There was evidence of the services of the plaintiff. The barge was taken to New Orleans. In June, 1844, she was attached in New Orleans for debt, and was there sold, when E. W. Clark and his brother became the purchasers. The plaintiff left New Orleans for St. Louis about the 5th July, 1844. The barge was sold in August, 1844. Strother, who built the barge and employed the plaintiff, on the 18th July, 1844, executed to him his due bill for the sum in controversy, which was given in evidence in the cause. This suit was commenced on the 9th January, 1845.

The defendant, by her owners, offered to prove by Strother, the former owner of the boat, and who executed the note used as evidence in the cause, that the said note was his own personal obligation and not binding on the boat; that it had been so received and so understood; that the plaintiff had no lien on the barge, and was to look to Strother individually for the money due by the note. Evidence was also given showing the kind of vessel the barge was; that she was not worked by steam, but was used by towing. The evidence of Strother was rejected by the court, as also an instruction to the effect that the barge was not subject to a lien and to this proceeding.

An objection is taken by the appellee, that the bill of exceptions does not show that all the evidence is preserved in it. It is hard to imagine a reason why the bill of exceptions should contain all the evidence in cases where the points to be raised in this court may be the exclusion of testimony, or the giving or refusing of instructions. In such cases, all that would be necessary, it seems, would be to show enough to satisfy this court of the relevancy of the evidence, and that the evidence raised the question of law contained in the instruction. If twenty witnesses are examined to prove one or more facts on which a point of law arises, would it not do as well to state in the bill of exceptions that testimony was given tending to establish the fact or facts, as to detail the whole...