Bartholow v. Campbell

• Decision Date: 31 March 1874
• Citation: 56 Mo. 117
• Parties: THOMAS J. BARTHOLOW, et al., Respondents, v. THOMAS CAMPBELL, et al., Appellants.
• Court: Missouri Supreme Court

56 Mo. 117

THOMAS J. BARTHOLOW, et al., Respondents,

v.THOMAS CAMPBELL, et al., Appellants.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

VORIES, Judge, delivered the opinion of the court.

This action is founded on a negotiable promissory note executed by the defendants, Hays and Campbell, for the sum of $2,500.00, payable to the defendant, Thurmond, and by him indorsed for value to the plaintiffs before maturity. The petition is in the usual form. The defendant Thurmond filed no answer. The other defendants each filed separate ones. Eliza T. Hays in her answer admitted the execution of the note sued on, but charged that the consideration of the note was money advanced to defendants, Thurmond and Campbell; that she signed the note at the request of the other defendants, and for their accommodation; that they procured her name to the note by fraud (setting forth the fraud), and that plaintiffs had notice of the fraudulent manner in which her name had been procured to the note at and before the time they purchased, or discounted the note.

The defendant Campbell in his answer set up substantially the same circumstances of fraud set up by defendant, Hays, except that he charged that he had been imposed on by Thurmond, and was only surety on the note for accommodation of Thurmond who received the entire consideration of the note, while Mrs. Hays charged that she had been defrauded by the combined fraud of Campbell and Thurmond. Defendant, Campbell, also charged that plaintiffs had notice of the fraud at the time that they discounted the note. The plaintiffs filed a replication to the answer of Mrs. Hays; but made no replication to the answer of Campbell.

When the case was called for trial the defendant, Hays, filed an affidavit for a continuance of the cause on the ground of the absence of one Mrs. Thurmond, who, it was stated in the affidavit was a married woman, and who had been sick, confined to her bed for ten days before the time for the trial and could not attend, and whose evidence was material for the defendant. This application for a continuance was overruled by the court, and the said defendant excepted.

A default was then taken as to defendant Thurmond, who had not answered, and the trial proceeded before the court.

After the evidence was closed on the part of the plaintiff, the defendant, Hays, offered in evidence the answer of defendant, Campbell, to which no reply had been filed, as evidence to prove the facts of fraud charged in her separate answer, which facts had been denied by the reply to her answer. This evidence was rejected by the court, and said defendant again excepted. No other evidence being offered, the court found for defendant Campbell on the pleadings, and rendered a judgment in favor of the plaintiffs, against the other defendants, for the amount of the note sued on and interest. The defendant, Eliza T. Hays, then filed her motion for a new trial, which being overruled she again excepted, and appealed to the General Term of the St. Louis Circuit Court, where the judgment rendered at Special Term was affirmed, from which last judgment defendant appealed to this court.

The first point presented by the defendant for the consideration of this court is, as to the propriety of the ruling of the Circuit Court in overruling the motion made by the defendant for a continuance of the cause. The continuance of a cause by the trial court is generally very much in the sound discretion of the court. Every intendment in such cases should be in favor of the sound and proper exercise of said discretion, and unless it plainly appears from the record that the discretion of the court has been unsoundly or oppressively exercised this court ought not to interfere. (State vs....