Cockrill v. McCurdy

• Decision Date: 31 January 1863
• Citation: 33 Mo. 365
• Parties: CLINTON COCKRILL, GUARDIAN, &c., Respondent, v. SOLOMON P. MCCURDY, IMPLEADED WITH GEORGE N. DYE et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 365

CLINTON COCKRILL, GUARDIAN, &c., Respondent,

v.SOLOMON P. MCCURDY, IMPLEADED WITH GEORGE N. DYE et al., Appellants.

Supreme Court of Missouri.

January Term, 1863.

Appeal from Platte Circuit Court.

This action was brought by Cockrill, as guardian, on the 21st day of October, 1861, to recover the sum of four thousand dollars, with interest, which he alleged was due him from defendants by their promissory notes, executed to him for said amount.

The defendants, Dye and Wood, filed no answer. The defendant McCurdy answered that he executed the note sued on as the security of George Dye, one of the defendants; that as security he gave plaintiff a notice in writing to sue on said note, according to the statute in such case made and provided, and that said notice was duly served on said plaintiff on the 25th day of July, 1861; and that plaintiff did not commence his suit on said note until the 21st day of October, 1861, which was more than thirty days after receiving said notice. The service of the notice was proved at the trial to have been made July 25, 1861.

It was then admitted by the parties that the suit was commenced on the 21st day of October, 1861. It was then proved by the plaintiff, notwithstanding the objection to such evidence by the defendant, that during the months of July, August and September of the year 1861 there was a great deal of political excitement in the county of Platte and about Platte City; that there were bands of lawless men banded together in said county who were committing a great many acts of violence in the county; that the deputy sheriff and clerk of the court left their homes sometime in the summer of 1861; the deputy clerk left about the 17th day of August, 1861, and the clerk's office was about that time closed for several weeks; that the sheriff left the county just before the battle of Lexington in 1861 -- about the 20th of September--and was gone for several weeks; that there was a band of men organized under Sy. Gordon who were threatening to seize the records of the Circuit Court in Platte county, during the month of October and part of November, in the year 1861, and in consequence of said excitement and trouble no courts were held by courts of record in Platte county during the summer and fall of 1861.

Mr. Merryman, a lawyer who practises in Platte Circuit Court, testified further that he did not think it would have been safe to have filed papers in the clerk's office of the Platte Circuit Court during the months of July, August, September or October of said year. He said that lawless bands of men had control of the country around Platte City; that in August (as the witness thought) he was about to commence a suit at Platte City to redress a wrong to the person of a citizen growing out of some difficulty there; that he became satisfied that it would not be safe to prosecute the suit, and desisted therefrom. But he stated that he thought that during the most of the summer and fall there would have been no danger in commencing a civil suit and having process served. There was part of the time when the officers were absent, but when they were at home they might have issued civil process in such cases, and had the same served without any molestation; but he thought that the records of the court were in danger of being taken and destroyed as before stated. He further stated that there was a court at Weston that had jurisdiction of this cause, called the Weston Court of Common Pleas; that he did not know whether the marshal and clerk of said court were at home attending to business during the summer and fall of the year 1861 or not; but that all of the defendants in this suit reside, and did at the commencement of this suit and for years before, in said town of Weston, and were in the jurisdiction of said Court of Common Pleas.

The defendant introduced James N. Burnes, a practicing lawyer, residing at the town of Weston. He stated that he practised law in the Weston Court of Common Pleas; that during the whole spring, summer and fall of the year 1861, the clerk's office of said Court of Common Pleas was kept open for business, and that business -- except for a week, perhaps, when the clerk and perhaps the marshal of said court was absent from home at St. Joseph, which was in the last week of November -- was never suspended in said court; that the marshal of said Court of Common Pleas was also at home, at the city of Weston, during all of said time, ready and willing to do any business, or serve any process, that might come to his hands; that he did not know of said marshal being absent at all during said summer and fall, and if he had been it was only for a day or two; that defendant Dye, and also the other defendants, reside at Weston, and if they had been sued in said Weston Court of Common Pleas during the months of August or September, he knew of no reason why they could not, or would not, have been served with process in a day or two, at any time during said month of August, or any time during said summer and fall of 1861. Said witness further states that Judge Doniphan, who was judge of said Weston Court of Common Pleas, in or about the forepart of September, 1861, left home, and held no term of said court during the fall of said year; that he resigned and another judge was afterwards appointed; that he knew from Judge Doniphan, in the first part of the month of August, that he would not hold a...