Cochran v. Moss

• Decision Date: 31 January 1847
• Parties: COCHRAN v. MOSS.
• Court: Missouri Supreme Court

10 Mo. 416

COCHRAN

v.MOSS.

Supreme Court of Missouri.

January Term, 1847.

APPEAL FROM SUELBY CIRCUIT COURT.

ANDERSON & DRYDEN, for Appellant.

STRINGFELLOW, GLOVER & CAMPBELL, for Appellee. That the decres of the Circuit Court should be affirmed: First. Because the issue upon the execution of the note having been directed by an interlocutory order in the cause, the finding thereon was not conclusive at all upon the parties, and it was competent for the court to proceed to hear and adjudge the whole cause upon the bill and answer again, as was done in this instance. See 2 Smith's Ch. Pr. citing 4 Myl. & Cr.; see Equity Draftsman, 487. Second. The record shows that the cause was set for hearing on the bill and answer, and was heard on the bill and answer, and though a replication appears to have been filed, yet, as no exception was taken, it must be presumed that it was withdrawn, and all the averments in the answer must be taken as true. See Rev. Code, 1835, p. 310, §§ 18, 19. Third. But conceding that the verdict was not to be controverted, and was to be regarded as conclusive as far as it went, the balance of the cause being reversed for further directions, as to the other matters of equity contained in the bill, the Circuit Court was compelled in adjudication of those matters, to dismiss the bill, the proofs not being sufficient to sustain them. 2 Smith's Ch. Pr. 81; 1 Bibb, 175; 2 Littell, 271; 2 Bibb, 326. Fourth. Conceding the verdict at law was not to be controverted, the defendant certainly had the right to show that the issue or finding was immaterial to the relief prayed by the bill, as was the fact here, the jury having found that the promissory note in issue before them, was not “a deed,” such a verdict was a positive nullity in the cause. 2 Tidd's Pr. 953. Fifth. It seems that no affidavit was filed before the justice by Cochran, putting in issue the execution of the note. Had he, therefore, taken his appeal, he could not have made this point in the Circuit Court. Rev. Code 1845, p. 371, § 16.

MCBRIDE, J.

Samuel Cochran exhibited his bill in chancery to the Shelby Circuit Court against John Moss, and obtained an injunction to stay the collection of a judgment obtained before a justice of the peace by Moss against him. The bill sets out the judgment, denies indebtedness, and alleges that before the expiration of the time for taking an appeal from said judgment, Moss agreed to arbitrate the matters in controversy between them, but that after the lapse of the time for taking said appeal, he refused to arbitrate, and was about proceeding to enforce the collection of the judgment by execution. The answer denies all the material averments in the bill, and prays that the injunction may be dissolved and the bill dismissed. To the answer a general replication was filed.

Under the provisions of the 6th section 3rd article of the act to regulate Practice in the Courts of Chancery, Rev. Code, 844, the court directed an-issue to be made, and tried by a jury; whereupon the complainant filed his plea of non est factum with affidavit, and issue being taken thereon, and the evidence of the parties submitted to a jury, the jury found for the complainant, the issue aforesaid. The defendant filed his motion for a new trial, assigning the usual reasons, which was by the court overruled.

The cause was set down for hearing on the bill, answer, exhibits and evidence, when the court decreed a dissolution of the injunction and a dismissal of the bill. The complainant moved for a new trial, &c., which being overruled by the court, he excepted and appealed to this court.

The first question presented for our decision, is whether the Chancellor after the finding of an issue by the verdict of a jury, can disregard that finding and decree against it.

Under the English chancery practice he unquestionably has that right, and it is of every day occurrence to do so. There the chancery and common law courts are entirely separate and distinct tribunals, and when the Chancellor desires an issue to be tried at law, he sends the parties into the court of common law, where issues are framed and tried and the result certified to him. But such is not the case in this State; for here the same judge presides over both courts, and the making of issues for trial by a jury is now regulated exclusively by statutory enactment. If we be right in supposing that the trial of issues at law in a chancery cause is controlled by the statute, then we must look to the provisions of the statute and not to the practice in the English courts, to ascertain what are the powers rightfully to be exercised by our courts of chancery on the subject under consideration.

The sixth section of the act before referred to, declares that “if at any time during the progress of a cause it shall, in the opinion of the court, become necessary to determine any fact in controversy by the verdict of a jury, the court may direct an issue, or issues, to be made.” The next section provides “that no issue shall be made except such as shall be directed by the court.” Section 8 declares, that “the trial of such issues shall be by jury, and the issues shall be disposed of by a general or special verdict before a final decree shall be made therein.” § 9, “The court may award a new trial of any issue upon good cause shown, but not more than one new trial of the same issue shall be granted to any one party.”

These provisions in the statute appear to cover the whole subject of the making of issues for trial at law, their trial, and the control which the judge can legitimately exercise over them. The judge must first find it necessary to try the fact in controversy by a jury; he then directs the issue to be made, and no other can be made except such as he directs; he cannot decree until after the issues have been disposed of by the jury; he may so far control the finding of the jury as to grant one more trial, but no more. If after the foregoing proceedings are had directly under the supervision of the court, there is no obligatory effect in them, but the Chancellor may discharge the jury and proceed to decree directly in conflict with the verdict, then it would appear useless to subject the partias to the delay and costs incident to the trial of issues by a jury, and the Chancellor should be left to decide the whole matter in controversy. Such, we are persuaded, is not a fair and rational construction of the statute; such was undoubtedly not the intention of the Legislature. This question has before occupied the attention of this court, 4 Mo. R. 457, where the court say, that under our statute regulating the trial of issues in a court of chancery, that court is put upon the same footing as a court of law. In the same book, page 504, where the issue in a chancery cause was tried by the judge sitting as a jury, the court say: “Had the issues in this case been found by a jury it is plain that the Circuit Court would have been bound by the terms of the act to decree on such finding; for by the 6th section of the 3rd article of the act to regulate the Practice in Courts of Chancery, above referred to, it is provided that the court may award a new trial of any issue upon good cause shown, but no more than one new trial of the same issue shall be granted to any one party, and the jury having found the issues, the party against whom the finding is must not apply to the court to dismiss the bill for defect of evidence, the jury having found that there is no defect of evidence, but he must ask for a new trial of the issues.”

The plea filed on which the issue was made, was the plea of non est factum, and the jury by their verdict declare that the note upon which the judgment was obtained in the justice s court, and to restrain the collection of which the injunction was granted, was not the note of the complainant; yet the Chancellor, on a hearing of the cause, dissolved the injunction and dismissed the bill. In doing this we think he committed error, as his only means of correcting the finding of the jury, if wrong, was by granting the party a new trial. If the verdict was permitted to stand, the decree should have perpetuated the injunction, unless the allegations in the bill were wholly untrue and disproved.

We are next to inquire whether the Circuit Court committed error in dissolving the injunctions and dismissing the bill of the complainant. The bill is one filed for the purpose of obtaining an injunction to stay the collection of a judgment at law, and the averments contained therein, are therefore verified by the oath of the complainant. Those averments or statements setting forth the equitable grounds of relief, are denied by the answer of the defendant, likewise made under oath. To support the statements contained in the bill, the complainant read the deposition of...