Morris v. Hammerle

Citation40 Mo. 489
PartiesWALTER B. MORRIS and JAMES D. MORRIS, Appellants, v. BALZER HAMMERLE, Respondent.
Decision Date31 March 1867
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court.

Leverett Bell, for appellants.

Woerner & Kehr, for respondent.

FAGG, Judge, delivered the opinion of the court.

This was an attachment suit instituted in the St. Louis Circuit Court, under § 26, ch. 94, R. C. 1855. The provisions of this section of the act in relation to Landlords and Tenants were considered by this court in the case of Kleun v. Vinyard, 38 Mo. 447. The ground upon which an attachment is authorized to issue against the property of the tenant does not involve a question of intention, but one of fact. It was so held in the case referred to. In such cases, if it is found by the jury as a matter of fact that the actual or intended removal of the property from the premises would endanger the landlord in the collection of his rent, it will be sufficient to justify the suing out of an attachment.

The verdict in this case was for the defendant, and the plaintiffs bring this case here by appeal.

The first assignment of error relied upon by the appellants is the exclusion of the testimony of a deceased witness given upon a former trial of this case and preserved in a bill of exceptions. After proving the death of the witness, plaintiffs offered to read the testimony as there stated without laying any other foundation for its introduction. The court committed no error in excluding it in that shape. There is no question about the competency of such evidence. The principle is well recognized in the text books and also in the reported decisions of the courts; but the substance of what was sworn to by such witness must be proved, like all other hearsay evidence, by the testimony of a witness who can swear to its correctness. If notes of the testimony of such deceased witness are relied upon, then there must be a witness competent to testify and able to swear to their accuracy. The principles involved in this question were considered at length and carefully stated in the opinion of this court in the case of Jaccard et al. v. Anderson, 37 Mo. 91. The examination of this point is not essential except for the purpose of settling the rule of evidence in such cases. The testimony of this witness seems to have been cumulative merely, and contained no new fact bearing upon the issues in the case.

Two declarations of law were given by the court, one at the instance of the plaintiffs and for...

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10 cases
  • State v. Able
    • United States
    • Missouri Supreme Court
    • October 31, 1877
    ...State v. Harman, 27 Mo. 120; Summons v. State, 5 Ohio St. 325; Greenwood v. State, 35 Texas 587; Davis v. State, 17 Ala. 354; Morris v. Hammerle, 40 Mo. 489; Rhine v. Robinson, 3 Casey 30; P. & R. R. R. v. Spearen, 47 Pa. St. 306; Brown v. Commonwealth, 73 Pa. St. 321; Van Buren v. Cockburn......
  • The City of St. Joseph v. The Union Railway Company
    • United States
    • Missouri Supreme Court
    • June 19, 1893
    ... ... evidence and not a part of the record proper. Greenleaf on ... Evidence [14 Ed.], secs. 163 and 168, p. 218. Morris v ... Hammerle, 40 Mo. 489; Jackard v. Anderson, 37 ... Mo. 91. (3) The court erred in admitting other irrelevant, ... incompetent and illegal ... ...
  • Donnell v. Byern
    • United States
    • Missouri Supreme Court
    • October 31, 1883
    ...166; Bergau v. People, 17 Ill. 426; Wilbur v. Seldon, 6 Conn. 162; Powellv. Waters, 17 Johns. 176; People v. Newman, 5 Hill 295; Morris v. Hammerle, 40 Mo. 489; Jaccard v. Anderson, 37 Mo. 91; Finney v. St Charles College, 13 Mo. 265. Draffen & Williams for respondent. The writ of attachmen......
  • Williamson v. Adkins
    • United States
    • Missouri Court of Appeals
    • January 18, 1919
    ...Our attention has been directed to the following cases: Chamberlain v. Heard, 22 Mo. App. 416; Scully v. Cox, 75 Mo. App. 563; Morris v. Hammerle, 40 Mo. 489; Haseltine v. Ausherman, 87 Mo. 410; Haseltine v. Ausherman, 29 Mo. App. 451; Cleveland v. Crum, 33 Mo. App. 616; Kleun v. Vinyard, 3......
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