Davidson v. Peck

Decision Date31 August 1836
PartiesDAVIDSON v. PECK.
CourtMissouri Supreme Court
ERROR TO THE CIRCUIT COURT OF MONTGOMERY COUNTY

CHAMBERS for Plaintiff in Error, contended. 1st. That the court erred in suffering the depositions to be read so far as they related to the contents of a judgment and decree without a certified copy of the judgment and decree. Mo. Laws, p. 223, § 3; 1 Starkie Ev. 353 and 354. 2nd. The testify of certain executions, replevy bonds and endorsements on some, and they fail to give any regularly certified copy of these executions, replevy bonds or endorsements. 3rd. The copies which they give, are not sworn copies, for they do not appear to have had the custody of the document, nor any authority to examine and state them as copies, besides the executions which they give, showing that they were returned and made a part of the record. Wherefore the whole and not a part of the record should have been given. 4th. The clerk certifies that they are copies, but not under the seal of his court; consequently his certificate is of no avail. 5th. The executions do not show that Peck was Davidson's security, nor do they on their face show any identity or connection with the suit against Davidson as administrator, for they are simply against Davidson and Peck, in their individual capacity. 6th. As to the admission of the record, this objection exists, throughout the record of the recovery in Kentucky there is no averment against Davidson that executed the administration bond, nor that he ever gave Peck as his security, or that he ever had forfeited his bond and made his security liable for the penalty or any part of it; nor is the bond any where set out in the proceedings against Davidson. For Peck to recover, these things were material for him to make out, viz: 1st. The execution by Davidson, and Peck as his security of the bond. 2nd, the breach. 3rd, the damages, and 4th, the payment of the damages by Peck. Yet, so far as Davidson is a party to the record, neither of these things [were] averred, nor has he ever been furnished with an opportunity of denying either or any one of them, or defending himself against them or any of them. So far as the record furnishes any evidence of Peck being Davidson's security, it is evidence made by Peck himself. 3 Starkie, p. 1384; 2 Starkie, 182 to 189, and note 1. 7th. The statements of Horton are made under such circumstances, that their truth may well be doubted; and if true do not justify the judgment of the court. There is no date, time, place nor occasion given for the transactions which he describes; and it is given under such circumstances as precluded the defendant from the power of proving their falsity. 8th. The issue is not found. The court simply find that the plaintiff hath sustained damages to the amount of $701 71 cts. and give judgment, but don't find the issue, which was assumpsit vet non. 9th. The court gave judgment for the amount paid by Peck on the decree, but also his costs. If Peck and Davidson had been sued separately, Peck could not have recovered his costs of Davidson. Quære, Can he then in a joint action, recover them?--3 Starkie, 1384, note 3. 10th. On the back of the record, the clerk of the Barren circuit court, certifies the amount that Peck had paid, as appeared by the record, as Davidson's security. This the court suffered to be used as evidence. This was clearly error on the part of the court, for the clerk had no authority to make any such certificate.

CAMPBELL, for Defendant in Error. This was an action of assumpsit to recover a large sum of money, paid by Jacob Peck in Kentucky, as the security of the said Alexander Davidson. As such it [is] a debt of the highest dignity, and should not be permitted to be avoided on mere matters of form or technical objections, unless the proceedings be such as are clearly illegal. In the first place, the said Peck by his attorney, objected to the admission of certain depositions--to the admission of a certain record from Kentucky, and to the sufficiency of the evidence to make out the case. The declaration has three counts: 1st. A special count on a Kentucky decree to recover $845, paid by Peck as the scurity of Davidson, with interests and costs. 2nd. A count for $1,000, had and received by Davidson to use of Peck. 3rd. A count for $1,000, laid out and expended by Peck to the use of Davidson. Plea general issue; writ issued March, 1831. At September term, 1831 and 1832, two sets of depositions excluded on motion for formal objections. At May term 1833, a motion to exclude certain parts of three deposition overruled and excepted to. At September term, 1833, cause tried and the court sitting as a jury, gave verdict for plaintiff for $701 93 3/4, and costs--motion for a new trial--overruled, judgment accordingly--bill of exceptions. On the part of Peck, I contend that the court did right in admitting said depositions. The only objection taken to them is, that the witnesses in general terms, refer to the judgment executions and other parts of the record on which the money was paid, without a full copy of the record accompanying the same. I contend first, that this is merely a useful directory provision of the statute, for the convenience of practice; and that if wholly neglected, would not be sufficient to set aside the depositions; if it appears that they are unnecessary to the justice of the cause; and that depositions are fully intelligible without such papers referred to. And further, that in this case the law has been complied with. The clerk, sheriff and attorney, when depositions are given, state distinctly the fact of certain money that was paid to them by Peck, as the security of Davidson, on certain executions and bail bond. Copies of which executions and bail bond, are annexed and referred, and sworn to by each witness, as the same on which the money was paid; and the decree is merely referred, by way, stating the title and general nature of the cause in which the executions issued.

I contend that it is not the meaning and intention of our statute, that when a paper attached to a record is referred to, that a full certified copy of that record, should be produced, but merely such copies as will render the depositions intelligible. The absurdity of such a construction would evidently appear from an inspection of the record in the cause in which these executions issued, which record fills sixty-six heavy pages. To be compelled to embody such a body of copies of record in every deposition wonld be excessively expensive, inconvenient, burdensome and in many cases wholly impracticable. To require such a course, would in all such cases as this, amount to a total denial of justice, the copies are not under the seal of the court, but they in reality sworn to by all three of the witnesses. These depositions are all taken with great care and accuracy, and the statements therein made with great clearness, and properly certified. It is very unusual to find depositions taken out of our State that conform to our statute as well as these do.

I also contend that the court did right in admitting the copy of record from Kentucky; it is in every respect properly certified and authenticated; and the only objection to it is, that the clerk on the back of it has made an endorsement, that the true amount paid by Peck in said decree was $732 66, with interest from 25th March, 1829, and the costs. This is merely a memorandum of the clerk, made to assist those who might get the record in making their calculations. It follows the certificate of the clerk and judge forms no part of the record; and was neither offered in evidence nor objected to on the trial. It is a memorandum, and on comparison with the record itself, it will be found correct, as to the amount paid by Peck, but it forms no part of the record.

The said record shows the following state of facts, as the foundation of Peck's claim: On the 4th of July, 1817, John Martin filed a bill in chancery against Alexander Davidson and others, in Barren Circuit Court, Kentucky, complaining that said Peck was administrator of Wm. Ross. That he had long mismanaged said estate, and improperly disposed of the property, and vexatiously refused to make distribution to said Martin and other heirs. Peck made answer, admitting that he was administrator and denying the charge. After much delay said Martin filed an additional amended bill, complaining that Davidson, the administrator, had made...

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18 cases
  • St. Louis v. Senter Comm. Co., 32488.
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1937
    ...S.W. 663; Sweet v. Maupin, 65 Mo. 65; State ex rel. Conant v. Trimble, supra, l.c. 143.] As early as the case of Davidson v. Peck (1836), 4 Mo. 438, we find this court applying the rule that an error appearing on the face of the record which was not called to the trial court's attention by ......
  • Propst v. Capital Mut. Assn.
    • United States
    • Court of Appeal of Missouri (US)
    • January 9, 1939
    ...were abandoned, were immaterial, irrelevant and tended to prove no issue in the case. 22 Corpus Juris, sec. 168, pp. 207-208; Davidson v. Peck, 4 Mo. 438. A verdict for the defendant is properly directed when the testimony affords no basis for a recovery in favor of the plaintiff. Cogan v. ......
  • Coleman v. Fletcher
    • United States
    • Court of Appeal of Missouri (US)
    • July 19, 1945
    ...... count 5 of defendants answer and refused to give defendants. Instruction "C" submitting said count. Davidson. v. Peck, 4 Mo. 438; City of St. Louis v. Commissioner Co., 340 Mo. 633, 646 and 647; Pitts v. Fugate, 41 Mo. 405, and because on the whole ......
  • City of St. Louis v. Senter Com'n Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1937
    ......Maupin, 65 Mo. 65; State ex rel. Conant v. Trimble, supra, l. c. 143.]. . .          As. early as the case of Davidson v. Peck (1836), 4 Mo. 438, we find this court applying the rule that an error. appearing on the face of the record which was not called to. the ......
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