Laun v. Ponath
| Decision Date | 07 March 1904 |
| Parties | FREDERICK C. LAUN et al., Appellants, v. EDWARD H. PONATH et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Osage Circuit Court.--Hon. John W. McElhinney, Judge.
Cause affirmed.
T. M. & C. H. Jones and Crites & Garrison for appellants.
(1) The court erred in overruling the application for a continuance filed by the appellants in this case. R. S. 1899, sec. 682; Tunstal v. Hamilton, 8 Mo. 500; Barnum v Adams, 31 Mo. 532; State v. Lewis, 74 Mo. 222; State v. Anderson, 96 Mo. 241; State v Maddox, 117 Mo. 667; Alt v. Grosclose, 61 Mo.App. 409; Shoe Co. v. Hilig, 70 Mo.App. 308; State v. Dewitt, 152 Mo. 85; Campbell v McCaskell, 88 Mo.App. 47. (2) The materiality of the evidence. Campbell v. McCaskell, 88 Mo.App. 47; Shoe Co. v. Hilig, 70 Mo.App. 409. (3) After filing their suit the plaintiffs in order to insure the presence of the original note to be used in evidence on the trial of the cause, served notice upon defendant Ponath.
C. D Corum for respondent.
(1) Defendants say that they deligently sought to prepare for the trial of this case. The record does not sustain that assertion. (2) The evidence offered conclusively shows that the note was in the possession of some person other than attorney Terrell or the defendant, Ponath, and the record further shows that no effort whatever was made to procure the note from such other persons. It was essential that the application should show that such effort had been made. Bartholomew v. Campbell, 56 Mo. 119. (3) If plaintiff desired to enforce the production of the note and deed of trust, our statute and the decision thereunder, have provided a method of procedure. This method should have been pursued. R. S. 1889, sec. 737, 738 and 741; Deil v. Railroad, 37 Mo.App. 459; Hill v. Meyer, 47 Mo. 595; Jeffries v. Flint, 55 Mo. 29.
In August, 1902, the plaintiffs commenced an injunction suit to restrain defendants from proceeding to foreclose a certain deed of trust which plaintiff Laun had executed to secure the payment of certain notes payable to defendant Ponath. Among other allegations was one that the said notes were barred by the statute of limitations. A temporary injunction was issued by two judges of the county court. The proceedings were begun in the Maries county circuit court, and when the case came up for hearing the defendants moved to dissolve the injunction alleging, among other matters, the insufficiency of the bond. The court refused to sustain the motion to dissolve but made an order upon plaintiffs to give a new bond to be filed within ten days. Within the time fixed the plaintiffs filed the required bond. But before this was done there had been an order changing the venue to the Osage county circuit court. Before the beginning of the term of court in the latter county the plaintiff gave the defendant, Ponath, notice to produce the said notes at the coming trial. The purpose for which the notes were to be used was to show if the credits on them had prevented the bar of the statute of limitations, the notes themselves having been executed for more than ten years. When the case came up in the last named court the bond for injunction for some cause was held invalid. Before proceeding to trial it appeared that the defendant had not produced the notes, giving as an excuse for not doing so that he had hypothecated them to one, Mrs. Anna P. Holsman, who was then in court. The plaintiff then made application for a continuance on the ground of surprise that the notes had not been produced, alleging their materiality. In defendant's answer he stated the fact that said notes had been so hypothecated to Mrs. Holsman. After hearing evidence, the object of which was to show that defendant had not hypothecated the notes, the court overruled plaintiffs' application for a continuance; and as they refused to further proceed in the trial, the court dismissed the case for want of prosecution and the plaintiffs appealed. The plaintiffs claim that the court erred in overruling their application for a continuance and in rejecting their injunction bond.
The order upon which plaintiffs were to file a new injunction bond within ten days was made before the venue of the case was changed...
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