McKinney's Adm'r v. Davis

• Decision Date: 30 September 1840
• Citation: McKinney's Adm'r v. Davis, 6 Mo. 501 (Mo. 1840)
• Parties: MCKINNEY'S ADM'R v. DAVIS.
• Court: Missouri Supreme Court

6 Mo. 501

MCKINNEY'S ADM'R

v.DAVIS.

Supreme Court of Missouri.

September Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY.

SPALDING, for Appellant. 1st. The Circuit Court did not err in opening the judgment of the County Court and granting a new trial. Rev. Code, 63, and particularly § 8. 2d. The Circuit Court erred in deciding that the first judgment in the County Court was not a bar to the second suit. Rev. Code, 155, 156, 157, and also pages 55 and 56; 1 Phillips' Ev. 242; and 1 Starkie's Ev. 208. 3d. The Circuit Court ought to have granted a new trial, as the verdict was against law and evidence.

GEYER, for Appellee. 1. It does not appear by the record of the County Court that in the decision excepted to, that court erred in any material question of law or fact, and the judgment of the County Court ought therefore to have been affirmed; and though it should appear that there was error committed on the new trial, yet as the result is precisely that of affirming the judgment of the County Court, no error has been committed for which the judgment can be reversed, certainly none by which the appellant is injured. Rev. Code 1835, p. 63-4. 2. The merits of the case are clearly with the appellee as is manifested by the verdict of two juries; and a judgment rendered upon such finding ought not to be reversed, unless there is very manifest error. 3. No error was committed by the Circuit Court in rendering judgment for the plaintiff on the verdict. The record of the County Court does not show either the nature of the demand, or the amount presented in the former proceeding; nor is there on that record any decision as to the particular demand. These matters it is attempted to supply by parol evidence against law.

MCGIRK, J.

This case comes here by appeal from the Circuit Court of St. Louis county. The case was commenced in the County Court of St. Louis county, and originated as follows, to-wit: At the May term of the County Court for St. Louis county, 1838, on the 3rd day of the term, Davis, by his attorney, presented to the court for allowance against the estate of S. T. McKinney an account for $221 43 founded on the following receipt, to-wit: St. Louis, May, 27th, 1834, R'd of E. Davis two hundred and twenty-one dollars forty-three cents. S. T. McKinney. On the validity of this demand the parties had a regular jury trial in the court, and a verdict and judgment were given for the plaintiff, Davis, in that court for the amount, and the administrator took the case to the Circuit Court, where the plaintiff Davis again had a verdict and judgment, to reverse which the cause is brought here. McKinney, the appellant and administrator, alleges, that the Circuit Court committed error on the trial of the cause in refusing to decide that the plaintiff's (Davis), demand was not barred by reason of it having once before been before the County Court and disallowed. This question, as I conceive, is the chief and main question to be decided by this court.

Before this question can be fairly gone into, a previous question which arises must be determined, which is a question of fact to be determined by an inspection of the record. It is insisted by Mr. Geyer of counsel for Davis that the record does not show that this case was ever adjudicated on and disallowed by the County Court.

This court has looked into the record sent here from the Circuit Court, and by the record and the evidence contained in the bill of exceptions, we are satisfied the plaintiff's claim was once before on a trial in another case, different from the present suit, fully tried by the County Court and disallowed, and from that disallowance the plaintiff, Davis, took no appeal, but submitted to the same, expecting to redress his grievance by a new suit. It may here be remarked that Davis made no objection in the Circuit Court to the evidence given to prove a former trial. It appears by the record that a part of that evidence was record evidence, and a part was oral evidence. The Circuit Court was called on to decide and declare the law to be, that when a demand is once regularly laid before the County Court for an allowance against the estate of a dead person and disallowed, that such disallowance is a bar to a subsequent suit for the same demand, which the court refused to do, but decided that a new suit might be brought for the same thing. To determine the correctness or incorrectness of this decision, a view of the statute creating County Courts and defining their powers, must be resorted to. In page 156, Rev. Code, 1835, § 15, it is declared, that the County Courts shall have and possess the following powers (after naming other things): Sixth. To hear and determine all suits and other proceedings instituted against e...