Collins v. Bowmer

• Citation: 2 Mo. 195
• Parties: COLLINS v. BOWMER.
• Decision Date: 31 May 1830
• Court: Missouri Supreme Court

2 Mo. 195

COLLINS

v.BOWMER.

Supreme Court of Missouri.

May Term, 1830.

ERROR FROM THE CIRCUIT COURT OF HOWARD COUNTY

M'GIRK, C. J.

This was a case originating before a justice of the peace, where Collins had judgment. Bowmer appealed to the Circuit Court, and the parties went to trial, and the plaintiff, Collins, suffered a non-suit. A motion was made to set aside the non-suit and overruled by the court. To reverse this decree of the court the cause is brought here by a writ of error. A bill of exceptions was taken to the opinion of the court in overruling the motion. It has been made a question on the part of the defendant in error, that a writ of error will not lie on a motion to set aside a non-suit, and it has been shown that in some of the States, the practice is so, and in others it is not so. It is sufficient to say on this matter, that the case of Mullanphy v. English, 1 Mo. R. p. 780, shows that a writ of error has been entertained in such a case, nor do we now see any reason to disturb that which we consider settled. ^(a)

The summons which issued from the justice is to answer in an action of assumpsit on an account liquidated and certain. On the trial in the Circuit Court, the plaintiff produced an account between the parties, and on the back of the paper an acknowledgment was written to this effect: “This day settled with William Collins, all the within accounts, and fall in his debt sixty-seven dollars,” &c. Signed, Charles Bowmer. The plaintiff offered to give the paper in evidence, without any proof of the handwriting of Bowmer to the acknowledgment, which was objected to, and the court sustained the objection.

The plaintiff then called on the defendant under a certain statute to give evidence in chief. The defendant was sworn, and gave evidence tending to deny the execution of the writing. The plaintiff then offered to give evidence of the defendant's declarations made before the justice on the trial there, which evidence was rejected by the court. It does not appear what these declarations were, nor whether they related to the execution of the instrument. Then the plaintiff took a non-suit.

The first error made and relied on is, that the court erred in refusing to let the account and acknowledgment go to the jury as an instrument declared on, it being the foundation of the action, and not denied by the oath of the defendant, according to the statute. The second is that the court erred in refusing to receive the evidence as to the declarations of the defendant made before the justice. It is insisted by Messrs. Clark and Reynolds, counsel for the plaintiff, that this paper is the foundation of the action, and that they are not bound to prove it, unless it be denied by the oath of the party. The act of the General Assembly says (R. C. p. 479), when any suit shall be founded on any instrument in writing purporting to be executed by the other party, the same shall be received in evidence, unless the party charged to have executed it shall deny the execution thereof on oath. To entitle the plaintiff to read an instrument in writing under this statute two things, at least, are required. The first is, there be an instrument purporting to be executed by the defendant. And, secondly, that the instrument should be the foundation of the action in...