Shaler v. Van Wormer

• Decision Date: 31 March 1863
• Citation: 33 Mo. 386
• Parties: JAMES R. SHALER, Respondent, v. ABRAHAM S. VAN WORMER et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 386

JAMES R. SHALER, Respondent,

v.ABRAHAM S. VAN WORMER et al., Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Court of Common Pleas.

Voorhis, for respondent.

N. D. Strong, for appellants.

DRYDEN, Judge, delivered the opinion of the court.

This was an action by the endorsee against the maker and endorser of a negotiable promissory note. The maker made default; Van Wormer, the endorser, answered, denying any knowledge or information sufficient to form a belief as to whether his co-defendant had made the note, or he himself had endorsed it, or as to whether the note had been presented, refused, protested, and notice given as charged in the petition. A trial was had, resulting in a verdict and judgment for the plaintiff, from which the defendant Van Wormer has appealed to this court, and has assigned for error, 1st, the refusal of the Common Pleas to grant him a new trial; and 2d, its refusal to arrest the judgment.

1. The motion for new trial is based entirely on the supposed insufficiency of the certificate of protest as an instrument of evidence. The fault complained of was, that the facts stated in the certificate were not verified by the affidavit of the notary. Whether the affidavit accompanying the notary's certificate in this case applied to the facts stated in the certificate of protest, or whether such certificate needs to be verified by affidavit in order to be a fit instrument of evidence, we will not consider, for, in the present posture of the case, no question of the sort can properly arise. If it be conceded that an affidavit in such case is requisite, yet it is but a test of the truth of the facts certified, preliminary to the introduction of the certificate in evidence, and which may be waived by the party against whom it is offered; and if the want of the preliminary test is not objected to when the unverified document is offered, or in the progress of the trial, the objection ought to be considered as waived. The rule here invoked is fitly illustrated by the case of a deposition read on a trial without previously accounting for the nonproduction of the witness. In such case, if objection was not made when the deposition was offered, nor during the trial, it would hardly be pretended it would meet with favor afterwards. And again, a party has the right to demand that before a witness offered against him delivers his testimony he shall be duly sworn. But suppose, instead of insisting upon his right, he sits supinely by and allows the witness, unsworn, to bear evidence against...