Pope v. Mooney
| Decision Date | 31 March 1867 |
| Citation | 40 Mo. 104 |
| Parties | CHARLES A. POPE AND JULIUS S. WALSH, TRUSTEES OF OCTAVIA BOYCE, Plaintiffs in Error, v. JOHN MOONEY AND LOUIS G. PICOT, Defendants in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Land Court.
R. M. Field, for plaintiffs in error.
L. G. Picot, for defendants in error.
It is assigned for error that the court below erred in overruling the plaintiff's motion to set aside the non- suit and grant a new trial. The reasons for the motion were that the court erred in refusing to admit in evidence for the plaintiffs, a copy of a marriage contract, duly certified from the office of the Recorder of deeds for the county of St. Louis; and that the exclusion of the paper, upon objection made, operated a surprise upon the plaintiff's counsel.
The suit was commenced in 1856, in the names of the trustees to whom the land sued for was conveyed by the marriage contract, and the trial was had in 1864. The beneficiaries resided in Louisiana; their agent and the trustees in St. Louis. Suit was instituted, and counsel employed, through the agent who had charge of the business. It appears that the counsel went to trial, relying upon an opinion he had formed, from the previous ruling of this court upon the statute on this subject (R. C. 1855, p. 365, § 46), in the case of Barton v. Murrain, 27 Mo. 238, that the original would be presumed to be in the possession of the husband in Louisiana, and that the trustees, as the parties plaintiff, would be entitled to read an office copy in evidence; and his affidavit states that he was taken by surprise by the objection of the defendant's counsel, and was unable to produce witnesses to show where the original was; that he believed the same was in the hands of the husband in Louisiana, but that the grounds of his belief were only the nature and contents of the instrument and the usual course in such transactions; and that, if a new trial were granted, the original paper could be produced, or its absence accounted for.
By this instrument the property of the wife was settled upon the trustees to her separate use, but the husband was entitled to one-third of the annual income. The trustees held the bare legal title for the purposes of the trust, and both husband and wife were beneficiaries. The trustees were the only necessary parties to this action in ejectment, as representing the beneficiaries, but the suit was really for the benefit of the husband and wife only. Now, whether the original were in the actual possession of the trustees, or of either of the beneficiaries, or of their agent, it must be considered to have been within the power of the parties plaintiff, within the meaning of the statute; though it might be presumed from the nature of the paper, as well as other circumstances indicative of its place of custody, that the person to whom the possession rightfully belonged had the actual custody. In this case, we think the presumption would be rather in favor of the wife than the husband; but whether in favor of one or the other, it must have been equally within the power of the plaintiffs, so far as it would appear by the face of the paper--R. C. 1855, p. 365, § 46; Walker v. Newhouse, 14 Mo. 273.
In Barton v. Murrain, 27 Mo. 235, it was said that “the words of the statute ‘ not within the power’ should be construed as not within the control or possession of the party wishing to use a copy; that is, not in the possession of the party, his agent, servant or bailee, or other person under his control;” and that “if the original is presumed to be in the hands of a third person, a copy may generally be read, without the preliminary oath or affidavit of the party wishing to use it.” The counsel appears to have construed the instrument in such manner that it might be presumed to be in the possession of the husband as a third person and an inhabitant of an enemy's country during a time of civil war, with whom communication might be difficult, if not unlaw ful, and so not within the power or control of the parties plaintiff. There is much force in this view; but the suit was pending some years before the civil disturbances began, no efforts had been made to obtain the paper, and the counsel had relied upon the admissibility of the copy. We must hold that the non-production of the original was not sufficiently accounted for, and that there was no error in excluding the copy.
In the matter of surprise, we are referred to the peculiar provisions of the practice act of 1849--Laws of 1849, p. 87, § 3. We find nothing here that can justify any other than the ordinary and well settled meaning of a surprise in law, beyond the more liberal spirit which that act undoubtedly intended to inculcate in respect of the mere technicalities of pleading and practice.
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Hammond v. Johnston
...A copy cannot be used without an affidavit that the original is not in the power of the party wishing to use it. R. S., secs. 697 and 2302; 40 Mo. 104. It was proved that the original deed was in the hands of the clerk of the court. When the deed was made, there was no statute authorizing t......
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Smith v. Lindsey
... ... title. Greenl. Evid. [3 Ed.] sec. 509; Barton v ... Murrain, 27 Mo. 235; Boyce v. Mooney, 40 Mo ... 104. (4) The court also erred in refusing to compel ... defendant, while testifying as a witness in the cause, to ... answer whether ... ...
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Greer v. Parker
...trial where an attorney had been surprised by misconstruction of decision of this court as to admissibility of secondary evidence. Boyce v. Mooney, 40 Mo. 104. Where a witness absented himself after subpœna on him, a new trial must be granted on payment of costs. Ruggles v. Hall, 14 John. 1......
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Hancock v. Buckley
...in failing to object to same when received by the court; but plaintiff is estopped to object after the jury was discharged. Pope v. Mooney, 40 Mo. 104; State ex rel., etc., v. Rombauer, 44 Mo. 590; Fredwell v. Laffoon, 77 Mo. 26; Savoni v. Brashear, 46 Mo. 345; Tucker v. Railroad, 54 Mo. 17......