Duvall v. Ellis

• Decision Date: 31 January 1850
• Citation: 13 Mo. 203
• Court: Missouri Supreme Court
• Parties: DUVALL v. P. & S. ELLIS.

13 Mo. 203

DUVALL

v.P. & S. ELLIS.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO RANDOLPH CIRCUIT COURT.

WILSON, for Plaintiff.

NAPTON, J.

William Duvall sued Peter H. and Sarah G. Ellis on a note for $398 50, due November 1st, 1842. The suit was commenced in 1846 in the Circuit Court of Randolph county. Issues were taken upon the pleas of payment, set-off, and the general issue. Upon the trial, the defendants attempted to show by means of the depositions, and a record of a chancery suit in Kentucky, that they had paid off the note sued on or rather that they had paid up a certain indebtedness which existed on the part of plaintiff to one Martin Duvall, equal in amount to the note sued on and this indebtedness grew out of the same transaction which gave rise to the note sued on. To the reading of one of the depositions, the plaintiff objected; but the objection was overruled.

The plaintiff in rebuttal then offered to read a record of the proceedings of the Probate Court of Hancock county in the State of Illinois, to authenticate which there was appended the following certificate. “I, David Greenleaf, probate justice of the peace in and for said county of Hancock, and presiding justice of said court, do hereby certify, that the foregoing is a full and true copy of the records in my office of the proceedings on the estate of Walton R. Hurst, deceased, so far as the same appears from the books and papers in my office. In testimony whereof, I have hereunto set my hand and private seal (there being no public seal provided for said office, and I being my own clerk, no clerk being allowed by law to the probate justice) at my office in Carthage in said county of Hancock, this 16th day of March, A. D. 1847.

DAVID GREENLEAF,

Probate Justice of the Peace for Hancock Co., Ills.”

And the following additional certificate:

“State of Illinois, Hancock County, set. I, George W. Thatcher, clerk of the County Court in and for said county, do hereby certify, that David Greenleaf, Esq., whose name appears to the foregoing certificate, was on the day of the date thereof an acting probate justice of the peace in and for said county, duly elected, commissioned and qualified, as appears to me of record, and that his official acts as such, are entitled to full faith and credit. In testimony whereof I have hereunto set my hand and affixed the seal of said court at Carthage, this 16th day of March, 1847. GEORGE W. THATCHER, Clerk C. C. C., H. C.” This record was not permitted to be read. Thereupon the plaintiff took a non-suit. To set this non-suit aside is the purpose of this writ of error.

The objections to the deposition of Dillard Duvall cannot be considered here for two reasons; first, because no exception was taken to its admission, and second, if there had been, the objection made here is merely partial, and does not apply to the whole deposition, and therefore was no ground for its entire exclusion. In such cases, the specific parts objected to should be pointed out in the Circuit Court, and at the proper time. There is nothing in the bill of exceptions to show that this was done--nothing to show what the objections were, whether to the authentication of the deposition, the competency of...