Broadway Bank of Kansas City v. Stroud

• Decision Date: 22 June 1932
• Docket Number: No. 5091.,5091.
• Citation: 51 S.W.2d 555
• Parties: BROADWAY BANK OF KANSAS CITY v. STROUD et al.
• Court: Missouri Court of Appeals

51 S.W.2d 555

BROADWAY BANK OF KANSAS CITY v. STROUD et al.

No. 5091.

Springfield Court of Appeals. Missouri.

June 22, 1932.

Appeal from Circuit Court, Butler County; Robert I. Cope, Judge.

"Not to be officially published."

Action by the Broadway Bank of Kansas City, against Albert Stroud and others. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Geo. W. Babcock, of Poplar Bluff, for appellant.

Kearbey & Tedrick, of Poplar Bluff, for respondents.

SMITH, J.

This is an action on a note dated July 8, 1930, for the sum of $450, due ninety days after date, with interest from date at the rate of 8 per cent. per annum, with a provision of 10 per cent. of amount due thereon for attorney's fee if not paid at maturity and if it became necessary to be placed in the hands of an attorney for collection. The note was made payable to T. G. Garrett. The petition alleged that on the 26th day of September, 1930, and before maturity, said note was assigned and delivered to the plaintiff by T. G. Garrett. The petition sought judgment for the full amount of principal and interest with attorney fees.

The answer, verified, denied the execution of the note. A trial was had on July 7, 1931, and under direction of the court a verdict for the defendant was returned by the jury, and judgment entered accordingly. Plaintiff has appealed.

The record in this case is short. After the jury was sworn, the plaintiff offered the note attached to the petition. The following is the record:

"Mr. Babcock: I desire to offer in evidence the note sued on.

"Mr. Kearbey: To which I object, your honor, because the execution of the note is denied under oath.

"The Court: Overruled.

"Mr. Kearbey: And because the burden of proof is upon the plaintiff to prove the execution of the note. And I further object to it for the reason it is immaterial and irrelevant and doesn't tend to prove any of the issues in this case.

"The Court: Overruled.

"Mr. Kearbey: Save my exception."

The note was then read to the jury. The record shows the following:

"Mr. Kearbey: Now then, I move the court to exclude the introduction of the note because the defendants deny the execution of the note under oath.

"Mr. Kearbey (continuing): And for the further reason that the note itself is no evidence in the case and is immaterial, incompetent and irrelevant.

"The Court: Overruled.

"Mr. Kearbey: Save my exception.

"Mr. Babcock: I now desire to offer in evidence, for the purpose of comparison of the signatures, the answer of the defendants.

"Mr. Kearbey: To which I object because the note hasn't been identified by any person.

"The Court: Sustained.

"Mr. Kearbey: And I now move the exclusion of all the testimony relative to the note for the reason it has not been identified by any person, and it hasn't been proved that it was signed by these defendants, which is denied under oath by the defendants.

"The Court: Overruled.

"Mr. Babcock: I except to the ruling of the court in not admitting the answer.

"Mr. Babcock: That's our case. (Plaintiff rests.)

"Now comes the defendants at the close of the plaintiff's case and moves the court to instruct the jury that under the law and the evidence in this case the jury's verdict must be for the defendants.

"The foregoing demurrer was filed by the defendant and sustained by the court, to which action of the court in sustaining said demurrer the plaintiff objected and excepted at the time."

It is shown from the foregoing record that the note in question, the execution of...