Cartmill v. Hopkins

• Decision Date: 30 September 1830
• Citation: 2 Mo. 220
• Parties: CARTMILL v. HOPKINS.
• Court: Missouri Supreme Court

2 Mo. 220

CARTMILL

v.HOPKINS.

Supreme Court of Missouri.

September Term, 1830.

ERROR FROM ST. LOUIS CIRCUIT COURT.

WASH, J.

This was an action commenced before a justice of the peace. Judgment was given by the justice for the plaintiff. The defendant appealed to the Circuit Court, where upon a trial de novo, judgment was rendered for the defendant; to reverse which the plaintiff has brought his writ of error into this court. As appears from the bill of exceptions, the case was submitted to the court on the following case agreed between the parties: “That the instrument sued on (a copy of which is set forth in the summons issued by the justice before whom this cause was commenced) was made in the State of Kentucky, where the parties then resided, and where the plaintiff still resides. That the defendant, about the time the money in the instrument sued on mentioned became due, as early as April, 1819, removed from the State of Kentucky, and settled at Edwardsville, in the State of Illinois, where he continued to reside until some time in the year 1827, when he removed from Edwardsville, Illinois, to St. Louis, in the State of Missouri. On this state of facts, the defendant insisted on the statute of limitations as a bar to the plaintiff's action. And the plaintiff contended and insisted that the plea was bad, because the action was founded in a sealed instrument, and that even if the court should be of opinion that the instrument sued on was not under seal, the defendant ought not to be permitted to plead the statute of limitations in bar.” The court decided that the instrument sued on was not under seal, and that the statute of limitation; was a good plea in bar. There is nothing to show that the original note or obligation sued on was ever before the court. It is no other way described than as “the instrnment sued on (a copy of which is set forth in the summons issued by the justice before whom this cause was commenced).” In referring to the copy of the note, as copied into the record from the justice's summons. we find it set out in the following words and figures: “On or before the first day of April next, I promise to pay Thomas Cartmill, or order, one hundred dollars, for value received this 24th day of April, 1818.

WM. H. HOPKINS, [L. S.]

Attest: STEPHEN MACFORLAND.

The Circuit Court ought unquestionably to have had the instrument before it in order to have determined whether it was sealed or not. No copy made by the justice, however accurate a fac simile, would answer. It might be sufficient on this point alone to dispose of the cause, but two other questions have been presented, which it may be well to settle.

First. Is the instrument, as set out and described in the summons of the justice, a sealed instrument? And second, did the removal of the defendant prevent the running of the statute of limitations in his favor?

The doctrine in Virginia on a statute similar to our own in regard to scrawls (1 Wash. 270, 1 Munford 490, and 2 and 4 Munford 442), as cited and read by the defendant'...