Smith v. Monks

• Decision Date: 31 January 1874
• Citation: 55 Mo. 106
• Parties: THOMAS SMITH, ADM'R, Respondent, v. WILLIAM MONKS, Appellant.
• Court: Missouri Supreme Court

55 Mo. 106

THOMAS SMITH, ADM'R, Respondent,

v.WILLIAM MONKS, Appellant.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Webster Circuit Court.

Waddell, Monks and Flanagan, for Appellant.

Ewing & Smith, and Bray & Mitchell, and Pope & Miller, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This case purports to have been brought before a justice of the peace of Howell county, and from there appealed to the Circuit Court of said county; from which court the cause was removed by change of venue to the Circuit Court of Ozark county, and from which last named court the venue was again changed and the case removed to the Circuit Court of Webster county, where the cause was tried and a judgment rendered in favor of the plaintiff; from which the defendant has appealed to this court. The cause was tried by the court, a jury having been waived by the parties. No instructions or declarations of law were asked by either party, or given by the court, and although the record is quite long and as irregular as it is possible to make one, yet not a single exception of law was made or saved by either party in the whole record, other than the exceptions taking to the overruling of the defendant's motions for a new trial and in arrest of the judgment.

The grounds set forth in these motions, for the interference of the court, were, first, that the several changes of venue were improperly taken; second, that the suit was brought on an instrument given to plaintiff as administrator, while the suit was brought by him in his individual capacity; third, that the instrument, upon which the suit was brought, did not purport to have been given for a valuable consideration; fourth, the record was not properly certified to the court trying the cause so as to give the court jurisdiction of the case. It is insisted by the defendant, that the court trying the cause had no jurisdiction of the case; that there is nothing in the record showing that an appeal was properly taken from the judgment of the justice, and that there was no properly certified transcript of the proceedings in the Circuit Court, or in the different courts, to show that the cause was properly transferred from court to court by change of venue. It is true, that the record fails to show the judgment before the justice, and the appeal from the justice's judgment to the Circuit Court; and it is also true, that the two changes of venue taken in the cause were not very regularly taken, and it is not shown that the proceedings in one court were properly certified from such court to the other. But the answer to all this is, that the defendant appeared in the different courts making no objection to the proceedings already had, and in the Webster Circuit Court the defendant appeared voluntarily, made an agreement to go to trial, and allowed a copy of the instrument sued on (and which had not been sent to said court with the papers) to be read in evidence on the trial, and then went to trial by agreement, and waived a trial...