Sinclare Coal Co. v. Tabor-Grigg Coal Co.

• Decision Date: 13 May 1925
• Docket Number: No. 3635.,3635.
• Parties: SINCLARE COAL CO. v. TABOR-GRIGG COAL CO. et al.
• Court: Missouri Court of Appeals

272 S.W. 701

SINCLARE COAL CO. v. TABOR-GRIGG COAL CO. et al.

No. 3635.

Springfield Court of Appeals. Missouri.

May 13, 1925.

Rehearing Denied June 6, 1925.

Appeal from Circuit Court, Jasper County; S. W. Rates, Judge.

Action by the Sinclare Coal Company against the Tabor-Grigg Coal Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

M. R. Lively, of Webb City, for appellants. McReynolds, McReynolds & Flanigan, of Carthage, for respondent.

COX. P. J.

Action upon a promissory note. Trial by court resulting in a finding and judgment for plaintiff. Defendants appealed.

Before the trial began, one of the defendants filed an application for a change of venue on the ground of prejudice of the judge of the court and also alleged prejudice of the inhabitants of the county. It is contended by appellants that when this application for change of venue was filed, the trial court lost jurisdiction of the parties and the cause, and that all of his acts thereafter were void. There is nothing anywhere in the record before us to show that the trial court ever passed on the application or made any order in relation to it, or that appellants saved any exceptions to the court's failure to act upon it. The filing of the application did not divest the court of jurisdiction, and its action in relation thereto can only be reviewed in an appellate court when proper exceptions are duly saved, and since that was not done in this case, the alleged error of the court in that regard is not before us for review. State ex rel. v. Evans, 184 Mo. 632, 83 S. W. 447; State ex rel. v. Riley, 203 Mo. 175, 101 S. W. 567, 12 L. R. A. (N. S.) 900; Incorporation of Little Tarkio Drainage Dist. No. 1 v. Richardson, 227 Mo. 252, 126 S. W. 1021; State ex rel. Burns v. Shain, 297 Mo. 369, 380, 248 S. W. 591.

On the merits in this case it appears that the petition is the usual petition upon a promissory note. The Tabor-Grigg Coal Company filed a separate answer in which it denied the execution of the note sued upon, but this answer was not verified, and that defense is therefore eliminated. This answer further alleged that a contract had been entered into between the Tabor-Grigg Coal Company and plaintiff, by the terms of which plaintiff agreed to advance to this defendant $7,500 to use in its business, and that this defendant was to sell to plaintiff the entire product of its coal mine, and plaintiff should deduct from the price 10 cents per ton and apply it on the debt until it should be paid, and that a note of $7,500 was executed by all the defendants as an accommodation to plaintiff to permit it to use this note as collateral in borrowing money, and that it was agreed that the note should be used for that purpose only and not be collected from its makers; that afterward this note was surrendered and the note in suit executed under the same agreement, and hence this note was without...