Hester v. Frink
Decision Date | 03 May 1915 |
Docket Number | No. 11362.,11362. |
Citation | 176 S.W. 481,189 Mo. App. 40 |
Parties | HESTER v. FRINK. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Boone County; David H. Harris, Judge.
Action by A. M. Hester against H. R. Frink. From a judgment for plaintiff, defendant appeals. Reversed.
E. C. Anderson and McBaine & Clark, all of Columbia, for appellant. F. G. Harris and Finley & Sapp, all of Columbia, for respondent.
This is an action on a judgment by confession recovered by plaintiff November 3, 1911, against defendant in the circuit court of McLean county, Ill., upon the following negotiable promissory note:
Payments of interest were indorsed on the back for the years 1906, to 1910, inclusive. The note bore no other indorsement.
It is conceded that defendant was not served with summons, and that he did not appear, or authorize any one to appear for him and confess judgment, unless the warrant of attorney on the face of the note constituted such authority. Pursuant to that warrant, an attorney of the McLean county bar appeared in the circuit court on the filing of the declaration and, without the knowledge or consent of defendant who had removed to Missouri and was living in Boone county, filed the following cognovit:
The declaration, cognovit, and affidavit were Sled in the circuit court of McLean county November 3, 1911, in vacation, and on the same day judgment by confession was rendered against defendant by the clerk of the court. The answer in the present action pleads that the Illinois court was without jurisdiction to render judgment for three reasons: First, because plaintiff was not the holder of the note; second, since the judgment was rendered more than a year and a day after the execution of the warrant of attorney, the affidavit attached to the cognovit was fatally insufficient in omitting to state the amount due on the note; and, third, that the note had been fully paid before the proceeding in the Illinois court, and the judgment by confession was procured by fraud. A jury was waived, the court rendered judgment for plaintiff, and defendant appealed.
The nine makers of the note above described were the directors of a telephone company at Lexington which was in pecuniary straits, and the note was given for money they borrowed from the payee, Mrs. Shade, for the use of the company. They also borrowed $3,800 from the State Bank of Lexington for the same purpose, and gave their notes to the bank for $1,200 and $2,600, respectively. These notes were carried by the bank and Mrs. Shade until September, 1911, when Mrs. Shade delivered her note to the cashier of the bank for collection, and he demanded payment of the three notes. In the meantime Withers, one of the makers of the notes, had been appointed receiver of the telephone company, and defendant had sold out his interest in that company and moved to Missouri. Eight of the nine makers—all except defendant—paid the amount due on the three notes to the cashier, the note belonging to Mrs. Shade being paid in full September 9, 1911. Mrs. Shade gave the cashier no authority to assign or transfer that note, nor to do anything else than to receive payment in full. On receiving payment the cashier delivered the note to Withers who, acting for himself and the other paying makers, employed lawyers to sue defendant on the note. instead of suing him for contribution. Treating himself as the holder of the note, Withers, under the advice of his lawyers, handed it to plaintiff, who is a lawyer, with oral instructions to collect it from defendant, and agreed to pay plaintiff a contingent fee of 50 per cent. Plaintiff immediately employed Withers'...
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