Farmers' & Drovers' Bank v. Williamson

• Decision Date: 31 October 1875
• Citation: 61 Mo. 259
• Parties: THE FARMERS' AND DROVERS' BANK, Respondent, v. S. P. WILLIAMSON, et al., Appellants.
• Court: Missouri Supreme Court

61 Mo. 259

THE FARMERS' AND DROVERS' BANK, Respondent,

v.S. P. WILLIAMSON, et al., Appellants.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Jackson County Special Law and Equity Court.

Karnes & Ess, for Appellants.

Testimony that Bainbridge was president and Phillips cashier of the “Farmers' and Drovers' Bank,” is not evidence that the Bank was a corporation. (Welland Canal Co. vs. Hathaway, 8 Wend., 484-5-6; Halloway vs. Memphis, El-Paso and Pac. R. R. Co., 23 Texas, 465; Adams vs. Bank of Marietta, 9 Leigh, 242-3-4; Bank of Utica vs. Smalley, 2 Cow., 770; Wood vs. Jefferson Co. Bk., 9 Cow., 194; Hargrove vs. Bank of Ill., 1 Breese, 84-6; Bank of Michigan vs. Troy City Bank, 1 Doug. [Mich.], 457; Jackson vs. Plumbe, 8 Johns., 295.) The evidence in this case shows the fact of an association acting under the name of the “Farmers' and Drovers' Bank,” but this is not evidence of an incorporation. (Welland Canal Co. vs. Hathaway, supra; Hamtramck vs. Bank of Edwardsville, 2 Mo., 169.)

It devolved on the plaintiff to prove the fact of its incorporation as the pleading stood. This was an action before a justice of the peace. There are no pleadings at all, either of payment, limitation, or any other defense. (Henry vs. Lane, 2 Mo., 201, and cases in every volume of Mo. Reports to the present time; Ang. & Ames Corp., 9 ed., § 635, p. 640; § 632, p. 633.

Cobb & Cobb, for Respondent.

I. The appearance of defendant in a justice's court, or an appeal therefrom, without making any special objection to the capacity of either party to sue or be sued, certainly does not raise any broader issue than that under the common law; yet in by far the great majority of the states, it has been held that the general issue does not put in issue the corporate character of the plaintiff, even when alleged in the declaration as part of plaintiff's case. (Mass. Prop. of Great Beach vs. Rogers, 1 Mass., 159; 3 Met., 235; N. H. Sch. Dist. vs. Baisdell, 6 N. H., 197; 6 H. H., 527; Brown vs. Illius, 27 Conn., 84; 5 Watts & Serg., 215; 27 Conn., 282; 5 Gilm., 48; T. B. Mon., 584; 37 Me., 42; 5 Ohio, 286; 44 Me., 49; 1 Ala., 241.)

II. This view of the case is manifestly correct in view of the statute prescribing the rule for trials in justices' courts. When the plaintiff files for suit a note made by the defendant, and the latter fails to appear, the justice must render judgment for the plaintiff whether he appears at the trial or not. (Wagn. Stat., 831, § 15.)

The note itself then, is all the evidence necessary to make out a case for plaintiff, unless some objection is made or evidence offered by the defendant. And it certainly does not require any other or different evidence to make out the case in the appellate court.

SHERWOOD, Judge, delivered the opinion of the court.

The defendants were sued before a justice of the peace, as the makers of a promissory note for $295.65, made payable to the order of A. A. Bainbridge at the First National Bank of Kansas City, and purporting to be endorsed in blank by the payee and one Warner. Judgment going for plaintiff, the cause was appealed to the court from which this appeal comes, where, upon a trial de novo, the plaintiff was again successful. It is alleged here that two errors were committed during the trial of the cause which authorize a reversal; one in refusing the application of defendant (Williamson) for a continuance; the other in refusing to grant at his request an instruction in the nature of a demurrer to the evidence adduced.

I.

The application for a continuance was very properly overruled. The absent witness was Vail, a co-defendant and co-maker of the note. The most palpable lack of diligence is manifest on the face of the application. No subpœna was issued for the witness, who resided in Jackson county, and the singular excuse is given “because within the last week he has not been within the jurisdiction of this court.” Nor is the application at all strengthened by the allegation therein made as to the absence of the attorney (a member of a law firm) who had the control and management of the case. The continuance of a cause on such a ground must rest almost, if not altogether, in the sound discretion of the court, and there is nothing whatever brought to our attention here to indicate that the case is one of any intricacy, or that there has been an unsound exercise of that discretion.

II.

The testimony of the assistant cashier...