Borders v. Barber

• Decision Date: 30 April 1884
• Citation: 81 Mo. 636
• Parties: BORDERS v. BARBER, Administrator, Appellant.
• Court: Missouri Supreme Court

81 Mo. 636

BORDERS

v.BARBER, Administrator, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Bollinger Circuit Court.--HON. J. H. NICHOLSON, Judge.

AFFIRMED.

Cahoon & Whybark for appellant.

The refusal of the court below to sustain defendant's motions to suppress the depositions of Samuel Frazier, and their admission for plaintiff are manifest errors for which alone the cause should be reversed. McLean v. Thorp, 4 Mo. 257; R. S. 1879, §§ 2152, 2153; Ober v. Pratte, 1 Mo. 80; Leak v. Elliot, 4 Mo. 446; Riggin v. Collier, 6 Mo. 568; Hite v. Lenhart, 7 Mo. 22; Cox v. St. Louis, 15 Mo. 431; Mooney v. Kennett, 19 Mo. 551; Charlotte v. Chouteau, 25 Mo. 465. The court should have permitted defendant to prove by Ezekiel Barber that the note and mortgage were given by James Barber to Ritchey to cover money and property which he was from time to time to furnish Barber, and anything he received from Barber was to be credited on the note, and that Barber did not get all the money at once. R. S. 1879, § 3565; Waldheir v. Railroad Co., 71 Mo. 514; Price v. Railroad Co., 72 Mo. 414; Ferris v. Thaw, 72 Mo. 446; Chambers v. Meyer, 68 Mo. 626; Wells v. Sharp, 57 Mo. 56. The court should have permitted defendant to show the bad character of Samuel Frazier, whose deposition had been read. The impeaching witnesses Yount, Kimminger and Biffle were competent under the facts of the case. 1 Wharton on Ev., § 563. The deposition of Luke White, taken in the case of Neece et al. v. Borders et al. should have been admitted, the issues in that suit and the one on trial as to fraud being the same, and the plaintiff having had an opportunity to cross-examine the witness when his deposition was taken. Jaccard v. Anderson, 37 Mo. 91; Adams v. Raigner, 69 Mo. 363; Breeden v. Fenert, 70 Mo. 624. Plaintiff's tenth instruction was wrong; it directed a verdict on the plaintiff's showing only, and was not cured by those given for defendant. Goetz v. Railroad Co., 50 Mo. 473; Thomas v. Babb, 45 Mo. 384; Modisett v. McPike, 74 Mo. 636. The instruction was wrong also in requiring the interest to be computed at ten per cent from its date until the date of the trial, a period of nearly five years after the note became due. After maturity the note drew interest at six per cent. Brewster v. Wakefield, 22 How. 118; Holden v. Trust Co., 100 U. S. 72; Burnhisel v. Firman, 22 Wall. 170; 3 Parsons on Cont., pp. 104, 105.

Johnson & Nalle for respondents.

The court committed no error in the matter of the depositions of Samuel Frazier. The assignment of a note carries with it all of the securities, equities, etc., and so the assigning of the mortgage and debt evidenced, thereby carries with it the note, and as the assignments are in writing, it makes no difference that they are upon the mortgage, the note or a separate paper. Laburge v. Chorin, 2 Mo. 179; Anderson v. Baumgather, 27 Mo. 80; Mitchell v. Ladew, 36 Mo. 527; Chapell v Allen, 38 Mo. 213; Potter v. Stevens, 40 Mo. 219; Kansas City S. A. v. Martin, 61 Mo. 435; Logan v. Smith, 62 Mo. 455; Picket v. Jones, 63 Mo. 195. The court below was correct in excluding evidence offered by appellant to show that the note and mortgage were given to secure future advances, there was no such issue. R. S. 1879, § 3527; Pier v. Hennaheffental, 52 Mo. 333; Weil v. Poston, 77 Mo. 284, and authorities there cited. The ruling of the circuit court, in excluding depositions taken in another action when the parties and issues were all different, is correct. The rule given by the court as to the computation of interest on the note, was the correct one.

PHILIPS, C.

This is an action to recover judgment on a note executed by James Barber to William Ritchey, and to foreclose a mortgage given by said Ritchey to secure the payment of said note. The petition alleged the assignment of said note by Ritchey to plaintiff for value, in the usual course of trade before its maturity. The note was nonnegotiable. James Barber having died, the suit was revived against the defendant as his administrator.

The answer admitted the execution of the note and mortgage; but put in issue the assignment of the note and mortgage to plaintiff and denied that any part of the note was unpaid. It further pleaded that the said James Barber had sold and delivered to said Ritchey certain goods, and performed certain work for him, in payment of said note, the aggregate amount whereof was more than sufficient to satisfy the note; that this occurred while said James held the note and the same should have been credited thereon. It was further alleged that the plaintiff took said note with notice, etc.; and the note was transferred to him under a collusive arrangement between the said Ritchey and plaintiff to defraud Ritchey's creditors. The reply put in issue the new matter set out in the answer; and, also, alleged a general settlement between said Ritchey and James Barber, touching all dealings between them, covering the matters pleaded in the answer, and that on said settlement James Barber owed a balance to Ritchey which he then promised pay. On a trial had before a jury and preliminary thereto, many questions arose which will be noticed in their proper order in the opinion. The plaintiff recovered for the full amount of the note upon which the court proceeded to render judgment and to foreclose the mortgage. From that judgment the defendant prosecutes this appeal.

I. The first error assigned for a reversal of the judgment is, the refusal of the court to suppress certain depositions taken on behalf of plaintiff. These depositions were taken at Sparta in Randolph county, Illinois, at different dates and under commissions issued out of the clerk's office of the Bollinger circuit court. Objection was made to the commissions because they were directed to no particular officer or place. The commissions are addressed “to any judge, notary public, justice of the peace or other judicial officer of the state of Illinois, or to any ____ greeting.” We think the commission was well directed under the last clause of section 2133, Revised Statutes, 1879. It authorized the notary public to take a deposition provided he was a notary public of the state of Illinois. Section 2152 of said statute makes the certificate of such notary “in his official character accompanied by his seal of office * * sufficient evidence of the authentication of such deposition.” Objection is made to the certificate because it showed the notary was merely a notary “of Sparta” or “in Sparta.” The criticism is, that it does not appear what Sparta is, whether it is a town or city. This is hypercritical. The whole paper, the caption and certificate, should be read in connection, and if from the whole the official character of the certifying officer, as also the venue, can be ascertained to a reasonable certainty this will suffice. Weeks' L. Dep., § 351. The caption states that the witnesses came before “me, R. J. Goddard, as notary public in Sparta, in and for said Randolph county, state of Illinois.” The certificate recites, “I, Reuben J. Goddard, as notary public of Sparta, in and for Randolph county, state of Illinois, and ex-officio commissioner to take depositions under and by virtue of the annexed commission do hereby certify,” etc. And it is so signed. It is manifest that the words “of Sparta” indicate merely the residence of the notary while the words: “In and for the county of Randolph” as clearly point the venue where his official acts are authorized.

In respect to the deposition of the witness, Frazier, as it was originally filed in the clerk's office, the caption showed that it was taken between the hours of “9 a. m., and 4 p. m.,” whereas the notice designated between “8 a. m., and 6 p. m.” This variance was not material. In the case of Kean v. Newell, 1 Mo. 754, the notice was to take the deposition between 10 and 6, whereas the certificate showed that it was taken between 8 and 6. This was bad for the reason that the deposition may have been taken within hours outside of those prescribed in the notice. The certificate to Frazier's deposition shows it to have been taken within the hours designated. There being no pretense that the deposition was taken at an unseasonable hour within the time prescribed, or that defendant was hindered in making a cross-examination, had he desired to so do, the deposition should not have been suppressed for the discrepancy. Waddingham v. Gamble, 4 Mo. 465; Moss v. Booth, 34 Mo. 316; Scharfenburg v. Bishop, 35 Ia. 60. It appears also that the word “touching” was omitted from the notary's certificate where it should have occurred in the following clause: “Who was sworn to testify the whole truth of his knowledge touching the matter in controversy.” This was a mere clerical omission, and the absence of the word did not impair the certificate. The statute requires that the certificate shall show that the witness subscribed and swore to his examination. R. S., § 2151. The certificate in question clearly enough showed that the witness was sworn, and that he subscribed to the examination. That was sufficient.

The next objection to the certificate is, that the official seal of the notary was not affixed. This was material. The record shows that on motion to suppress, made by defendant, the court found the above enumerated omissions in the certificate, and thereupon directed the clerk of the court to return the depositions to the notary for correction, as the facts might be. This was done. The notary corrected the hours, as stated in the original certificate, so as to conform to those named in the notice, and inserted the word “touching,” where it was omitted, and after affixing his seal of office, certified to the changes made, and returned the deposition to the clerk. At the next term of court the defendant filed a motion to suppress the deposition, based upon the omissions in the original certificate, and alleging the irregularity of the action of ...