Maupin v. Triplett

• Decision Date: 31 May 1838
• Citation: 5 Mo. 422
• Parties: MAUPIN v. TRIPLETT.
• Court: Missouri Supreme Court

5 Mo. 422

MAUPIN

v.TRIPLETT.

Supreme Court of Missouri.

May Term, 1838.

COLE, for Appellant.

1. Error assigned, illegal evidence on behalf of plaintiff. Triplett offered in evidence a bond given by himself, Maupin and Worthington, to James Breckenridge, for $65 85 as evidence to show that Maupin owed him his demand of $33 25. This bond, then, not being the foundation of the action, should have been proved according to law before it went to the jury. It was not so proved, and the Circuit Court erred in permitting it to go in evidence. Collins v. Bowmer, 2 Mo. R. 195; Mo. Laws, 361, § 18; Baldridge, Adm'r, v. H. Walter, 1 Mo. R. 520.

2. The judgment is erroneous. Triplett only demanded $33 25, and the judgment is for $94 07; this is error--Carr & Co. v. N. Edwards, 1 Mo. R. 137; Johnson v. Robertson, 1 Mo. R. 615.

EDWARDS, J.

Triplett sued Maupin before a justice of the of the peace for $33 25. The jury returned a verdict against Maupin for $33 25, upon which the justice rendered judgment against Maupin for $83 25, and Maupin appealed to the Circuit Court. On the trial in the Circuit Court, Triplett had a verdict for $94 07, for which sum the court rendered judgment against Maupin, and thereupon Maupin moved for a new trial, whieh motion the court overruled, and Maupin appealed to this court. On the trial, Triplett offered in evidence a bond given by Maupin, Worthington and Triplett, to James Breckenridge, for $65 85, as evidence that Maupin owed him his demand of $33 25, to which bond James A. M'Donald was a subscribing witness. A witness proved that M'Donald, the subscribing witness, was alive and living in St. Louis county, in this State. This witness also proved that he was present when this bond was executed; that he saw the obligor sign it, and that Triplett signed it as security. Witness did not attest it, but believes it the same note.

The first error assigned is, that illegal evidence was admitted on the part of the plaintiff. “If any suit or set-off be founded upon any instrument of writing, purporting to have been executed by the opposite party, and the same shall have been filed with the justice according to the preceding provisions of this act, such instrument shall be received in evidence on the trial, unless the party, before the jury is sworn, or the trial submitted to the justice charged to have executed the same, shall deny the execution thereof on oath”--§ 18, Rev. Code, 1825, 361. To entitle a party to read an instrument in evidence without proof of execution, two things are required: There must be an instrument purporting to be executed by the other party; and second, that instrument must have been filed with the justice as the foundation of the action, in support of which, it is offered in evidence--2 Mo. R. 196; § 6, Rev. Code, 1835, 350; and § 18, Rev. Code, 1835, 361. The bond offered in evidence to support...