Nolan v. Johns

• Decision Date: 26 November 1894
• Citation: 126 Mo. 159,28 S.W. 492
• Parties: NOLAN, Public Administrator, v. JOHNS et al.
• Court: Missouri Supreme Court

28 S.W. 492

126 Mo. 159

NOLAN, Public Administrator, v. JOHNS et al.

Supreme Court of Missouri, Division No. 1.

November 26, 1894.

ACTION ON INJUNCTION BOND — RESTRAINING CHATTEL MORTGAGE SALE — DAMAGES — EVIDENCE — INSTRUCTIONS — DEPOSITIONS.

1. Where notices for the taking of depositions in Chicago, Ill., and in Denver, Colo., on successive days, were properly served, a deposition taken in Denver will not be suppressed because appellant's attorney was at Chicago pursuant to the first notice, and could not be in Denver the next day.

2. In enforcing the liability of sureties on an injunction bond, the admission of evidence affecting only the principal on the bond and the sureties on another bond is not ground for reversal, where the evidence was afterwards taken from the consideration of the jury.

3. Where the court, in its charge on the question of damages against sureties on a bond for an injunction to restrain a sale under a chattel mortgage, directed that the verdict should not exceed the reasonable value of the mortgaged property at the time it was advertised for sale, with interest, an objection that the measure of damages was fixed by the amount of the mortgage note, with interest, is without force.

4. Evidence that a receiver had sold the mortgaged property, and held the proceeds subject to the order of the court, is inadmissible to reduce the damages.

5. A certified bill of costs in an injunction suit, which was assigned to respondent therein, against whom they were taxed, by the parties in whose favor they were taxed, is admissible in estimating damages against the sureties on the injunction bond, if no objection was made on the trial that such costs were not regularly taxed.

6. The granting of an application for a continuance to retax costs is within the sound discretion of the trial court.

7. Remarks of counsel in addressing the jury touching facts foreign to the case, if withdrawn after counsel has been reproved by the court, are not ground for reversal.

8. Where the motion to dissolve the injunction on the bond in suit was heard with a motion to dissolve another injunction, the sureties on the bond cannot complain that part of the costs should have been apportioned to the other case, if they failed to ask an instruction to that effect on the trial.

Appeal from circuit court, Johnson county; Charles W. Sloan, Judge.

Bill for injunction by George N. Nolan, public administrator, against J. H. Johns, O. A. Jones, and others, to restrain a sale of personal property under a mortgage. The injunction was dissolved, and judgment rendered in favor of defendant O. A. Jones on the injunction bond. J. H. Lipscomb and others, sureties on the bond, appeal. Affirmed.

For prior report, see 18 S. W. 1107.

O. L. Houts and T. A. Frank Jones, for appellants. Wm. Aull, Alcx. Graves, and J. D. Shewalter, for respondent.

BRACE, J.

This is an appeal by J. H. Lipscomb, J. M. Fox, D. C. Mastin, and Frank Jones from a judgment in favor of O. A. Jones, respondent, one of the defendants in said cause, against said appellants, on a verdict in his favor for the sum of $4,302.25 damages, assessed upon an injunction bond given in said cause, in which said appellants were the sureties of the plaintiff, and in which the injunction was dissolved. The case has been pending for 10 years, and this is the fourth time that the issues between these parties have been brought before the appellate courts. 27 Mo. App. 502; 98 Mo. 252, 11 S. W. 558; 108 Mo. 431, 18 S. W. 1107. In the first and last of these reports will be found a full statement of the case. So far as any additional statement is necessary, it will be made in the course of the opinion.

The appellants contend that the judgment should be reversed for the following alleged errors of the trial court:

1. In refusing to sustain appellants' motion to suppress the deposition of one J. G. Barnes, for the reason that it was taken in Denver, Colo., on September 2d, and respondent had given the appellants notice that he would take depositions in Chicago, Ill., on September 1st; and, the appellants having attended under the other notice, it was impossible for them or their attorney to be present in Denver on September 2d. The evidence on the hearing of this motion discloses no ground for suppressing the deposition except the mere fact that notice was given to take depositions at one place on one day, and at another place on the next day; and this alone would not authorize the suppression of a deposition taken in conformity with all the requirements of the statute, the statute in this regard only providing "that not more than one notice to take depositions in the same case shall be given for the same day." Rev. St. 1889, § 4446.

2. In admitting evidence in regard to the real estate secured by the deed of trust, a sale under which was restrained in the same case by a second order upon another bond, to which appellants were not sureties. The evidence objected to was admitted by the court only as against Nolan, the principal in both bonds, and was so stated by the court at the time, and afterwards, by instruction, was expressly taken from the consideration of the jury in assessing damages in the case against either principal or sureties. Conceding that the evidence objected to...