Carroll v. Paul's Adm'r

• Decision Date: 31 October 1853
• Citation: 19 Mo. 102
• Parties: CARROLL, Appellant, v. PAUL'S ADMINISTRATOR, Respondent.
• Court: Missouri Supreme Court

19 Mo. 102

CARROLL, Appellant,

v.PAUL'S ADMINISTRATOR, Respondent.

Supreme Court of Missouri.

October Term, 1853.

1. The Supreme Court has repeatedly declared that it will not reverse for the refusal to give instructions, when those given fully present the case to the jury.

2. A general stipulation that the minutes of the testimony of a witness on a former trial may be read in evidence, extends to any number of subsequent trials; nor is it necessary that the stipulation should have been filed among the papers in the cause.

Appeal from St. Louis Court of Common Pleas.

This was an action of assumpsit, begun by Carroll against Paul in 1847, and after the death of Paul, revived against his administrator. A statement may be found in the opinion of this court, when the case was formerly here. (16 Mo. Rep. 226.) On the last trial below, the respondent read in evidence the minutes of the testimony of John Barr on a former trial, first producing from his own possession a stipulation which is set out in the opinion below. The appellant proved that this stipulation was entered into at a former trial, and that the testimony of Barr had been read in evidence under it. He excepted to the admission of the testimony at the present trial, for the reason that the stipulation was only intended for the former trial, and for the further reason that it had not been filed in the case. Barr testified that Paul rendered an account marked “O” to Carroll, which showed a balance in his favor, and that Carroll promised to pay it, although he made some complaints. The account marked “O,” was then read in evidence, to which the appellant excepted, for the reason that it was not identified as the account referred to by Barr. There was a judgment for the defendant, from which the plaintiff appealed.

Krum & Harding, for appellant.

Britton A. Hill, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This case was before in this court, and was reversed and remanded at the March term, 1852. Upon the last trial, the defendant had a verdict, and the plaintiff appeals. The grounds of complaint upon which the appellant urges the reversal, consist in the admission of evidence, and the giving and refusing to give instructions. So far as respects the action of the lower court, in regard to the instructions given, as well as those refused, it is deemed sufficient for this court to say that, in looking over the facts of the case, and the law applicable thereto, we consider that the court below very fairly presented the law of the case to the jury.

1. The case was submitted to the jury upon instructions, in accordance with the decision of this court, at March term, 1852, and reference is had to the opinion then delivered. This court has again and again declared, that we will not reverse a judgment for not giving instructions, when we see that those given fully present the law of the case upon the matters in evidence before the jury. We shall not, therefore, any further notice this ground of complaint.

2. The principal matter of difficulty in the case, as it now comes before the court, consists in the admission of the evidence of the former witness, Barr, and the admission of the account “O.” The appellant insists that the court erred in admitting this testimony; and the defendant contends that it was properly admitted, and relies upon the stipulation of the counsel, as authorizing the ruling of the court in regard to the evidence.

After the plaintiff had closed his case, the defendant offered to read the report of the testimony of one John Barr, who gave testimony in a case at a former trial. To this the plaintiffs objected as incompetent. The defendant proved that said Barr had gone away, and a subpœna for him had been returned ““not found.” The plaintiff, still insisting on his objection, the defendant's counsel then produced from his own possession the following stipulation: “William L. Carroll vs. Rene Paul. In the St. Louis Court of Common Pleas. In this case, the testimony of John Barr, as given on the former trial of this case, as reported by the reporter, may be read in evidence on the part of the defendant, and books of account of the defendant, so far as entries are made by Carroll therein, are admitted. The ledger and day-book or account book, and the rent...