Steigers v. Darby

• Decision Date: 31 July 1844
• Citation: 8 Mo. 679
• Parties: STEIGERS v. DARBY.
• Court: Missouri Supreme Court

8 Mo. 679

STEIGERS

v.DARBY.

Supreme Court of Missouri.

July Term, 1844.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

BEATTY, for Plaintiffs. 1. The instrument sued on, given in evidence, shows that the issue of the plea of the statute of limitations ought to have been found for the defendants below, and therefore a new trial should have been granted. Rev. Code, 1825, p. 510. 2. The transcript of the record in the case of plaintiff's testator against the same defendants was improperly admitted to be read to the jury, both because it is not relevant to any issue made up between the parties, and because it is incompetent, as being recenter alias acta, Francis Steigers, one of the defendants in this suit, not having been served with process, in the other. 3. The affidavit of defendant's attorney shows, that, by accident and innocent mistake of his, the defendants lost the benefit of a good defense, which they had to the plaintiff's action. For these reasons, a new trial ought to have been granted. On the second point, see 1 Starkie, 217, that the parties to a judgment must be the same to make it evidence. And see 7 Mo. R. 261, Steigers v. Gross, that one named in the declaration as defendant, but not served with process, is not a party.

LEONARD and BAY, for Defendant. 1. The defendants did not object to any of the evidence introduced on the part of the plaintiff. 2. The motion for a new trial was properly overruled; because: First, the defendants did not use diligence in attending to their defense. 2 Marshall, 253; Stout v. Calver, 6. Mo. R. 254. Second, the defendants have not set forth the facts which they expected to prove by their witnesses. 2 Bibb, 179; 3 Marshall, 166. 3. The plaintiff entered a remittitur for the whole amount of the credit claimed by the defendants.

NAPTON, J.

This was an action of debt, brought by Darby, administrator of Gross, against Matthias and Francis Steigers, founded upon a promissory note, executed by said defendants to Gross, for eight hundred dollars. The defendant, F. Steigers, pleaded--1st, a discharge under the insolvent laws of Maryland; 2nd, statute of Limitations. M. Steigers pleaded--1st, the general issue; 2nd, set-off; 3rd, payment; 4th, pendency of another suit in the same court, for the same cause of action; 5th, ne unques administrator; 6th, statute of Limitations. Issues were made up on these pleas, and on 23rd March, 1843, the cause was called for trial, and the defendants not appearing, the issues were submitted to a jury, who found for the plaintiff. On the 25th March, 1843, the defendants moved for a new trial, alleging, among other reasons, that ...