State ex rel. Crawl v. Ferguson

• Decision Date: 31 July 1845
• Citation: 9 Mo. 288
• Parties: STATE, TO THE USE OF CRAWL, v. FERGUSON ET AL.
• Court: Missouri Supreme Court

9 Mo. 288

STATE, TO THE USE OF CRAWL,

v.FERGUSON ET AL.

Supreme Court of Missouri.

July Term, 1845.

APPEAL FROM CAMDEN CIRCUIT COURT.

G. W MILLER, for Appellant.

PHELPS, for Appellees. 1. The appellees insist that as the bill of exceptions shows there was other evidence given on the trial besides that incorporated in the bill of exceptions, the judgment will not be reversed. 2. That the appellant was not entitled to recover upon the evidence preserved in the bill of exceptions. 3. That this court will not reverse a judgment because an erroneous instruction was given, unless the party shows by his bill of exceptions, that he is entitled to recover. Newman v. Lawless, 6 Mo. R. 279; Finney et al. v. Allen, 7 Mo. R. 416; Vaulx v. Campbell, Ex'r, 8 Mo. R. 224; Cawthorn v. Muldrow, 8 Mo. R. 617.

MCBRIDE, J.

This was an action of debt brought by the plaintiff, against the defendants, on a constable's bond, to March term, 1844, of Camden Circuit Court. The defendants filed a plea of non est factum, and gave notice of special matter. Issue was joined on the plea, and at the March term, 1845, the parties went to trial. The bill of exceptions shows that on the trial, the plaintiff read in evidence the bond of the constable, dated the 19th August, 1840. The defendant then introduced evidence conducing to prove that more than two years prior to the commencement of this action, he had resigned his office of constable, to the introduction of which the plaintiff objected, but his objection being overruled by the court, the evidence was given to the jury, thereupon the plaintiff excepted to the decision of the court, in overruling his objection and permitting the evidence to go to the jury. The plaintiff then asked the court to instruct the jury, “that if the jury believe, from the evidence, that said suit was commenced within four years from and after the time, said Ferguson was elected a constable of Harmony township, in Pulaski county, the said suit is not barred by limitation of law.” Which the court refused to give, and the plaintiff excepted. A verdict having been rendered for the defendant, the plaintiff filed his motion for a new trial, assigning the foregoing, with other reasons, for a new trial, but the court overruled the motion for a new trial, whereupon the plaintiff excepted, and brings his case here by appeal.

The questions raised by the record are: 1. Did the court err in permitting the evidence offered by the defendant, and excepted to by tlie plaintiff, to go to the jury? 2. Did the court err in refusing to give the instruction asked by the plaintiff?

If the instruction asked by the plaintiff should have been given to the jury, then the evidence offered by the defendant, or any other evidence conducing to show when the defendant resigned his office of constable, for the purpose for which it was given, was irrelevant and immaterial to the issue, and should have been excluded by the court.

The first section of an act entitled: “An act concerning Constables,” Rev. Code, 116, prescribes the time and...