Graves v. McHugh

• Decision Date: 31 January 1875
• Citation: Graves v. McHugh, 58 Mo. 499 (Mo. 1875)
• Parties: JOHN GRAVES, Appellant, v. JAMES T. MCHUGH, et al., Respondents.
• Court: Missouri Supreme Court

58 Mo. 499

JOHN GRAVES, Appellant,

v.JAMES T. MCHUGH, et al., Respondents.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Newton Circuit Court.

N. H. Dale, for Appellant.

E. L. Edwards & Son, with J. C. Cravens, for Respondents.HOUGH, Judge, delivered the opinion of the court.

This was an action commenced before a justice of the peace, on a bond executed by the defendant, McHugh, as principal, and his co-defendant, Hutchison, as surety, in the sum of fifteen hundred dollars, under the 6th section of the law in relation to dram shops, to recover the sum of fifty dollars for an alleged breach of its conditions, committed by McHugh, in selling and giving away intoxicating liquors to a minor son of the plaintiff, Graves.

Judgment was given for the defendants by the justice.An appeal was taken to the Probate and Common Pleas Court of Newton county, and on the trial in that courtplaintiff offered in evidence a copy of the bond sued on, duly certified by the clerk of the County Court, which was rejected on the ground that it was not signed by two sureties, as required by law, and that it did not appear that it had ever been approved by the County Court.Thereupon plaintiff took a non-suit, with leave to move to set the same aside, and after the proper steps brings the case here by appeal.

The objections made to the introduction of the bond in evidence were not entitled to any consideration, and should have been disregarded.(James vs. State to use of Blow, 7 Mo., 81;Id., 458; Henry vs. State to use of Russell, 9 Mo., 778;State vs. Thomas, 17 Mo., 503;James vs. Dixon, 21 Mo., 538;State to use of Young vs. Hasselmeyer, 34 Mo. 76.)But objection is made here that the justice had no jurisdiction, as under the statute in relation to suits on bonds, the judgment, if for the plaintiff, must be for the penalty of the bond.This objection, although not made in the court below is...