Powers v. Browder

• Decision Date: 31 January 1850
• Citation: 13 Mo. 155
• Parties: POWERS v. BROWDER, ADM'R OF HEATH, TO USE OF O'BRYAN ET AL.
• Court: Missouri Supreme Court

13 Mo. 155

POWERS

v.BROWDER, ADM'R OF HEATH, TO USE OF O'BRYAN ET AL.

Supreme Court of Missouri.

January Term, 1850.

APPEAL FROM POLK CIRCUIT COURT.

TODD & LEONARD, for Appellant

HAYDEN & WINSTON, for Appellees.

NAPTON, J.

This was an action of debt commenced in the Benton Circuit Court, by the administrator of Heath against Powers and Ashly upon a bond for the payment of one thousand dollars. The case was removed to the Circuit Court of Polk county, and was there tried upon the issue of non est factum, and a verdict and judgment given for the plaintiff. The change of venue had. been ordered in 1846, and at the April term of the Polk Circuit Court, 1848, the defendant moved to suppress the deposition of Richard B. Heath, because it had not been certified or authenticated as the law required. This motion was overruled. At the same term, the death of O'Bryan, to whose use the suit was brought, was suggested by the defendant, and the court directed security for costs to be given to indemnify the nominal plaintiff. At the April term, 1849, the defendant, Powers (the suit having been previously dismissed as to Ashly), moved to dismiss the suit upon the following grounds. 1. Want of due diligence in its prosecution. 2. No renewal of the suit since the death of O'Bryan. 3. The failure to give bond by the cestui que use. This motion was overruled and an exception taken. At the October term of the same year a motion was made to strike the cause from the docket, because of some informality in the change of venue; the defendant insisting that the Polk Circuit Court had no jurisdiction. This motion was overruled. In support of the motion, it appeared the application for a change of venue was signed by the attorneys of the nominal plaintiff, and the affidavit was made by one Th. B. Smith who professed to be interested in the suit.

On the trial of the cause at that term, the plaintiff offered in evidence an obligation conforming in substance to the one declared on, except that the money was to be paid “without defalcation or discount.” An objection was made on account of variance, but the objection was overruled. The declaration averred that the defendants, on, &c., at, &c., by their certain writing obligatory, sealed with their seals, &c., obligated themselves to pay, on or before the 25th day of December, 1842, to one Richard B. Heath, for value received, the sum of one thousand dollars, and then and there delivered the said bond, &c.

The first error alleged is the...