Swan v. O'Fallon

• Citation: 7 Mo. 231
• Parties: SWAN & DEMING v. O'FALLON & POLK.
• Decision Date: 30 September 1841
• Court: United States State Supreme Court of Missouri

7 Mo. 231

SWAN & DEMING

v.O'FALLON & POLK.

Supreme Court of Missouri.

September Term, 1841.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

CROCKETT & GIST, for Appellants. 1st. Did the court err in refusing the instruction to the jury asked by the appellants, upon the trial of the issue upon the plea in abatement? Upon this point the counsel for the appellants respectfully submit that, in proving the fact that a firm composed of Elisha Swan and Anson L. Deming were doing business in Illinois, in January and February, 1840, the plaintiffs in the Circuit Court did not thereby, directly or indirectly, establish the fact that Elisha Swan and Nelson Deming were non-residents of this State, in July, 1840. There was no proof whatever that the firm at Lacon, Illinois, was the same which executed the note sued upon, nor was there any evidence conducing to prove their identity. 2nd. Did the court properly refuse to permit the witness, Shaw, to answer the question propounded by appellants? We believe no principle is better established than that in all controversies relating to hand-writing, the opinion of persons skilled in such matters is competent evidence. 1 Starkie's Ev. 54; 1 Phillips' Ev. 373-4; 4 Term R. 497; 4 Esp. R. 117, 145; 2 Saund. on Pl. and Ev. 554 (side page). 3rd. The court erred in admitting the note and indorsement in evidence, for the reason that it will palpably appear upon an inspection of the indorsement that it has been erased, and was consequently inoperative at the time of the finding in the court below. 4th. For the reasons above stated the court should have granted a new trial, which was refused.

POLK, for Defendants. 1. That the Circuit Court did right to refuse the instruction asked by the defendants below on the issue framed on the plea in the nature of a plea in abatement. Chitty's Bills, 353; Chitty's Bills (8th edition), 579-580; Dickinson v. Bowes, 16 East, 110. 2. That the court below committed no error in overruling the motion of the defendants below for a new trial of the issue on the plea in nature of a plea in abatement. Campbell & Maison v. Hood, 6 Mo. R. 217. 3. That the Circuit Court rightly adjudged that the question put by defendants below to the witness, Shaw, was illegal and improper. 1 Starkie's Ev. 14, 48, 69. 4. That the court below did right in overruling the motion for a new trial of the issue on the plea in bar. 6 Mo. R. 217.

TOMPKINS, J.

Polk & O'Fallon sued Swan & Deming in the Circuit Court, and having there obtained a judgment against them, they appeal to this court. The suit was brought on the statute, i. e. by petition in debt. The petition states that they, the plaintiffs, are the legal owners of a note against the defendants, Elisha Swan and Nelson Deming, executed by them by the name, style and description of Swan & Deming, to the following effect:

$519 28.00.

ST. LOUIS, 10th May, 1839.

Six months after date we promise to pay to John Riggin & Bro. or order, five hundred and nineteen dollars and 28 cents, &c.

Signed,

SWAN & DEMING.

This note was assigned to Polk & O'Fallon by Riggin & Bro., and the plaintiff procured a writ of attachment, to issue against the goods, &c., of the defendants. On this writ the sheriff made this return, that he had attached certain property in his return enumerated, and that he had offered to read the writ and declaration to Anson L. Deming, which he refused to hear. Afterwards the defendants filed two pleas, the first of which was in these words:

Swan & Deming,

)

ads.

)

On attachment

Polk & O'Fallon.

)

The said defendants, by their attorneys, pray judgment of the said petition and summons, and of the attachment issued thereon, because they say that the affidavit filed by said plaintiffs, with their said petition, by virtue of which said attachment issued, together with all the facts stated in said affidavit, are untrue, &c.

The second plea denied the assignment by Riggin, &c., to the plaintiffs.

The material words of the affidavit, the truth of which is denied in the first plea, are these following, viz: “that Elisha Swan and Nelson Deming, the defendants named in the foregoing petition, are justly indebted unto Trusten Polk and John O'Fallon, the plaintiffs therein named, after allowing all just credits, &c., in the sum of five hundred and forty dollars and forty-seven cents, on account of the same promissory note herewith filed, and a copy of which is contained in the foregoing petition, and also that this affiant has good reason to believe defendants are not residents of or residing in the State of Missouri,” &c. On the trial of the issue made on the first plea the defendants gave evidence to prove that the firm of Swan & Deming was composed of men named Elisha Swan and Anson L. Deming, instead of Nelson Deming, and the witness stated that he knew no such man as Nelson Deming, and that they resided in Illinois. The plaintiffs gave in evidence two promissory notes, filed with the petition in this cause. This being all the evidence offered, the defendants moved the court to instruct the jury that if they believed from the evidence that the firm composed of Elisha Swan and Anson L. Deming reside in Illinois, it is not sufficient evidence that the firm composed of Elisha Swan and Nelson Deming are non-residents of this State. The court refused to give the instruction, and its opinion was excepted to. A verdict was found and judgment given against the defendants, on this issue, and they moved for a new trial, assigning for reason that the court refused the instructions asked by them, and that the verdict was against evidence. Their motion was overruled.

The defendants then went to trial on the issue made on the second plea. The plaintiffs called a witness, who proved the assignment of the note. The defendants, by their counsel, asked the witness if he was not skilled in judging of hand-writings, and if so, was it not his opinion that the indorsement on the back of the note had not been erased since it was originally made? The court, on motion of the plaintiff, directed the witness not to answer the question. Exception was taken to this decision of the court. A...