Martin v. Martin's Adm'r

• Decision Date: 31 July 1858
• Citation: 27 Mo. 227
• Parties: MARTIN, Respondent, v. MARTIN'S ADMINISTRATOR et al., Appellants.
• Court: Missouri Supreme Court

27 Mo. 227

MARTIN, Respondent,

v.MARTIN'S ADMINISTRATOR et al., Appellants.

Supreme Court of Missouri.

July Term, 1858.

1. A finding of the facts made by a court in a suit instituted since the Revised Code of 1855 went into effect, being unauthorized by law, forms no part of the record of the cause and cannot be referred to in the Supreme Court for any purpose.

2. Amendments should be liberally allowed in furtherance of justice.

Appeal from Platte Circuit Court.

Spratt & Merryman, for appellants.

I. The court erred in not permitting defendants to amend their pleading so as to include the sum of sixty dollars proven to have been paid on said notes.

Ewing, for respondent.

I. The court had no right to allow the amendment. It was proposed after the evidence was closed, and changed the defense in matter of substance. (2 R. C. 1855, p. 1855, sec. 3.) But had it been such an amendment as the court in its discretion could have permitted, the refusal to do so would not be interfered with by this court. Amendments are peculiarly within the discretion of the inferior courts. (16 Mo. 226; 21 Mo. 535; 23 Mo. 227.)

RICHARDSON, Judge, delivered the opinion of the court.

The practice of finding the facts in cases tried by the court without the intervention of a jury no longer obtains, and such cases, in which instructions are neither asked nor given, will not be reviewed in this court except on questions of law duly saved during the progress of a trial; and the finding of facts by the court cannot be referred to for any legitimate purpose, as it has not properly any place under the present law in the record. A case then submitted to the court without a jury must be treated in all respects as if it had been tried by a jury, and this court will not interfere, except for such errors as will authorize the reversal of a judgment on the verdict of a jury. This point has been so often decided that it is too well settled to be discussed.

This case was submitted to the court without instructions, and only two questions are presented in the record, which are, first, the refusal to permit the defendants to amend their answer, and, secondly, the overruling of the motion for a new trial. In regard to the latter, it is sufficient to say that the evidence is not of such a preponderating character as to warrant the conclusion that it did not support the judgment; but as to the other exception, we think it was well taken.

The object of the suit was to foreclose a mortgage given to secure two promissory notes. The mortgagors sold the property after the execution of the mortgage, and their vendees were made defendants, who set up in their answer several payments that had been made on the notes. The plaintiff's agent, on his examination as a witness, not only proved the payment, on the plaintiff's account, of one hundred and seventy-five...