Industrial Acceptance Corporation v. Webb

• Citation: 287 S.W. 657
• Decision Date: 31 August 1926
• Docket Number: No. 4055.,4055.
• Parties: INDUSTRIAL ACCEPTANCE CORPORATION v. WEBB.
• Court: Court of Appeal of Missouri (US)

287 S.W. 657

INDUSTRIAL ACCEPTANCE CORPORATION v. WEBB.

No. 4055.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Rehearing Denied October 16, 1926.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by the Industrial Acceptance Corporation against J. Edward Webb. Judgment for plaintiff, and defendant appeals. Modified and, as modified, affirmed.

Claude B. Kenney and Owen & Davis, all of Joplin, for appellant.

Mercer Arnold, of Joplin, for respondent.

BRADLEY, J.

This is an action to recover the amount due, with interest and attorney's fee, on eight promissory notes. The cause was tried before the court without a jury. Judgment went for plaintiff, and defendant appealed.

There are eight separate notes of different makers involved and the petition is in. eight separate counts. All the notes were executed at Miami, Okl., and dated on different dates ranging from July 11, 1924, to July 15, 1925. Payments had been made on each of the notes by the respective makers and the balance due ranged from $172.12 to $539.16. All of the notes were made payable to the order of Webb Motor Sales Company, of Miami, Okl., and were made payable at the office of plaintiff in South Bend, Ind. These notes were, before maturity, indorsed by the Webb Motor Sales Company, the payee, and delivered to the Industrial Finance Corporation, a Virginia corporation, and were in turn indorsed by the Virginia corporation and delivered to plaintiff.

September 1, 1923, defendant, for a valuable consideration, entered into a written agreement with the Industrial Finance Corporation whereby he guaranteed the payment of all notes, drafts, and acceptances then held or thereafter acquired by said corporation on which the Webb Motor Sales Company was liable as maker, drawer, acceptor, indorser, or guarantor. This instrument is called the guaranty and was assigned by the said Industrial Finance Corporation to the plaintiff corporation and is the foundation of the present cause.

Plaintiff pleads the guaranty agreement and the facts relative to the notes, indorsements, etc. The answer is a general denial.

Error is assigned (1) on the overruling of two applications for a change of venue, (2) on the overruling of a motion to suppress depositions, and (3) on an alleged excessive judgment.

December 1, 1925, defendant filed an application for a change of venue, alleging the prejudice of the two judges of the circuit court of Jasper county. This application was overruled and the cause set for December 12th. On December 12th, after proper notice, defendant filed a second application for a change of venue, based only on the alleged prejudice of the trial judge. This application was also overruled and error is assigned on both applications. Plaintiff contends that, by filing a second application for a change of venue, defendant waived the right to complain of the overruling of the first application, and we think plaintiff correct in this contention. As a general rule a second application is not precluded by a previous denial, especially where the denial was to the form of or time of presenting the application, and a second application may be made as a matter of right if the facts have changed since the denial. 40 Cyc. 155. We find no case in this state directly in point. In State ex rel. Schonhoff v. O'Bryan, 102 Mo. 254, 14 S. W. 933, an application for a change of venue was filed, and while pending a second one was filed on a different ground. The two were considered as one application embodying all the grounds set up in both. Plaintiff's first application in the cause here was overruled because of alleged insufficient form. In the second no new ground is stated. Unless the right to complain of the denial of a previous application denied because of insufficient form is waived by a subsequent application on the same ground, then there would be no limit to the number of assignments that might be made on appeal or error because of the overruling of successive applications. The common sense of the thing is that the filing of a subsequent application for a change of venue after a previously filed application based on the same ground has been denied or overruled, waives the right to complain or predicate error upon the action of the trial court in denying or overruling the first application. Such is good sense and we so rule.

Did the court err in overruling the second application? Section 1360, R. S. 1919, requires that there shall be annexed to the petition or application for a change of venue an affidavit made by the party seeking the change, his agent, or attorney, "to the truth of the petition, and that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged." In the affidavit annexed to the second application defendant, "on his oath, says that the facts stated in the above and foregoing application are true to the best of his knowledge and belief, and that to the best of his knowledge and belief he cannot have a fair and impartial trial," because of the reason alleged. It is contended that this affidavit is not sufficient and that the trial court did not commit error in denying the application. The affidavit is not to the truth of the facts stated as required by the statute, but to their truth according to the best knowledge and belief of affiant. The affidavit is not "that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged," but is that to the best of his knowledge and belief he cannot have a fair and impartial trial.

In Lee v. Smith, 84 Mo. 304, 54 Am. Rep. 101, in considering a question relative to a change of venue, the court said:

"The application was also defective in failing to state that the applicant had just cause to believe that"he could not have a fair trial on account of the causes alleged."

The affidavit in that case is not set out, and we do not know what it did state, but from the opinion we know what it did not state. We find no case and learned counsel cite no case which supports the affidavit here, and in view of the ruling in Lee v. Smith, supra, we rule that the affidavit is not sufficient and that the trial court did not commit error in overruling the second application. While we have ruled that defendant waived his right to predicate error upon the denial of the first application for a change of venue, we might state in passing that the affidavit annexed to that application was not in compliance with the statute.

Should the motion to suppress depositions have been sustained? This assignment is based upon the contention that lawful notice was not given defendant of an application to shorten the time for taking depositions. Defendant did not appear at the hearing of the application to shorten the time to take depositions, nor did he appear at the taking of the depositions; hence there is no question of waiver of notice involved. On December 1st the cause was set down for trial on December 12th. Thereafter and on December 1st plaintiff served notice on defendant that on December 2d application would be made to the court to shorten time for taking depositions. The application to shorten stated that it was desired to take depositions in South Bend, Lad., and asked that the time be shortened so that said depositions could be taken on December 8th. A copy of the application, which advised fully as to where and when depositions were desired to be taken, was served upon defendant. with the notice on December 1st. The court sustained the application and shortened the time so that said depositions might be taken in South Bend on December 8th.

The notice required by section 5453, R. S. 1919, is "due notice." Defendant contends that he was entitled to 5 days' notice before the court could lawfully take up the application to shorten the time to take depositions. This contention is based on section 1216, R. S. 1919. Article 4, c. 12, R. S. 1919, is a part of our Code of Civil Procedure. The article embraces the Code relative to the commencement of actions, service of writs and notices. Section 1216 is near the end of the article, and reads as follows:

"Notices shall, unless a different time is prescribed by law or the practice of the court, be given at least five days before the time appointed for the hearing of the motion, pleading or other proceeding, if the person to be served reside within fifty miles of the place where the hearing is to be had, and one day for every additional twenty-five miles for the first three hundred miles, and beyond that one additional day for each hundred miles of distance from the place of...