Farmers Bank of Deepwater v. Ogden

• Decision Date: 05 December 1915
• Citation: 188 S.W. 201,192 Mo.App. 243
• Parties: FARMERS BANK OF DEEPWATER, Respondent, v. JOHN OGDEN, Defendant; GLOBE SURETY COMPANY, Appellant
• Court: Kansas Court of Appeals

188 S.W. 201

192 Mo.App. 243

FARMERS BANK OF DEEPWATER, Respondent, v. JOHN OGDEN, Defendant; GLOBE SURETY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 5, 1915

192 Mo.App. 243 at 253.

Original Opinion of December 5, 1915, Reported at: 192 Mo.App. 243.

Judgment affirmed.

OPINION ON REHEARING.

Per Curiam.

We granted and have had a rehearing of this case and only care to add to the opinion delivered at the first hearing, the following: Defendant seeks to enlarge its defense so as to cover theories not advanced to the trial court, nor to this court at the first hearing. It is now said that the O'Hare transaction shows not only that Grob cashier of the plaintiff bank, became aware that Ogden was guilty of forgery in having signed his name as cashier on the back of the O'Hare note, but that he "knew that Ogden has obligated his bank on a note in which it had no interest." Defendant then proceeds to enlarge upon this by arguing that even though it be conceded that Grob did not think Ogden had intended a forgery, he must have known that he intended to obligate the bank; and hence was bound to have notified defendant as provided in the bond.

This new theory should be disposed of substantially along the same lines that we disposed of the point originally made as to the forgery.

But aside from this, it is a familiar rule that an appellant is only permitted to advance on appeal such theories as he advanced at the trial (Daugherty v. Gangloff, 239 Mo. 649, 660, 144 S.W. 434; Henry Co. v. Bank, 208 Mo. 209, 226, 106 S.W. 622; State ex rel. v. Ice Co., 246 Mo. 168, 201, 151 S.W. 101); and also such points as he preserves and makes at the hearing on appeal as grounds for reversal. [Sharp v. Ry. Co., 139 Mo.App. 525 534.] In this case the point now urged was not offered to be submitted by defendant at the trial, either in its instructions given or refused. The instruction submitted in the O'Hare transaction was confined by defendant to the matter of forging Grob's name. If the defendant wished to present the point now made, it should have embodied it in a plain instruction to that effect. Not having done so the point is considered to be abandoned. [Keele v. Ry Co., 258 Mo. 62, 75.] It is true that defendant asked a general demurrer to the evidence which the court refused and it is now sought to make that request cover this new theory. But it cannot be done; for it is decided in Chinn v Naylor, 182 Mo. 583, 594, 595, 81 S.W. 1109, that "a general demurrer to the evidence cannot be used for the purpose of injecting into a case in the appellate court, questions that were not in some manner specifically called to the attention of the trial court, and upon which it cannot be seen that the trial...