Martin v. Chauvin

• Decision Date: 30 September 1841
• Citation: 7 Mo. 277
• Parties: MARTIN v. CHAUVIN.
• Court: Missouri Supreme Court

7 Mo. 277

MARTIN

v.CHAUVIN.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM ST. LOUIS COUNTY COURT OF COMMON PLEAS.

BOWLIN, for Appellant. 1st. The court erred in overruling appellant's motion for a continuance, upon the affidavit filed. The affidavit sets out a sufficient ground to have warranted the granting of a continuance. 2nd. The second point of error relied on is the fact of the court's overruling motion for a non-suit upon the grounds that the justice had no original jurisdiction in the matter, the notes each being for more than ninety dollars, and not being notes for the direct payment of money, but to be paid in lumber. 3rd. The third point relied on is, that the court of common pleas erred in overruling the appellant's motion for a new trial. The other points made in the assignment of errors not relied on.

J. D. JOHNSTON, for Appellee. 1st. As to the assignment of error, I maintain that Chauvin had a perfect right to sue on the notes separately, as decided by this court in Barns v. Holland, 3 Mo. R. 47. And even without the authority of that decision, although the law encourages consolidation of actions, where it can be done without prejudice to the plaintiff, it would not in a case like this, compel him to consolidation which would deprive him of the right to a speedy collection of his debt. Had these causes of action been consolidated, they would have amounted to a sum above the jurisdiction of a justice of the peace, and would consequently have driven the plaintiff to the more tardy remedy of process in a court of record. Justice's courts have been established, not more to save the expense incident to proceedings in the higher courts, than to promote the speedy adjustment and collection of debts, and this court, it is presumed, will not discountenance that policy. 2nd. As to the second assignment of error--in his affidavit for a continuance, the defendant not content with stating the materiality of the witness on whose testimony he relied, undertook to specify the fact he expected to establish by him, viz: that several months after maturity of the notes, defendants made a tender of the property for which they called. This was properly held by the court below, to be insufficient ground for a continuance, for even if true, it would be no defense. Had such a tender been made when the notes fell due, it would have been good, but not being made at that time, the debt became a moneyed demand, and the plaintiff was entitled so to have it. 3rd. As to the third assignment of error--this is sufficiently answered in noticing the first. 4th. As to the fourth assignment of error--in the bill of exceptions no mention is made of instructions, nor is it remembered that any such absurdity was committed below as asking the court to instruct itself. 5th. As to the fifth and last assignment of error--the bill of exceptions are a sufficient answer to this. It was argued below, and may be here, that on notes like these, an action does not accrue until after a demand for the specific satisfaction of them. Reference was made to a Kentucky case, but that only supports the defendant's position so far as having decided a demand to be necessary where the note was by it terms payable on...