Tipton v. Christopher

• Decision Date: 23 February 1909
• Citation: 116 S.W. 1125,135 Mo. App. 619
• Parties: TIPTON v. CHRISTOPHER.
• Court: Missouri Court of Appeals

116 S.W. 1125

135 Mo. App. 619

TIPTON v. CHRISTOPHER.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. BILLS AND NOTES (§ 527) — ACTIONS — EVIDENCE.

In an action on a note by a purchaser at a judicial sale against the maker, evidence held to support a finding that the note was not paid before its sale and before maturity.

2. APPEAL AND ERROR (§ 1010) — REVIEW — FINDINGS OF FACT OF TRIAL JUDGE.

If there is no evidence to sustain a finding of fact of the trial judge, it is subject to review and correction on appeal the same as a finding by a jury under such circumstances.

3. TRIAL (§ 382) — TRIAL BY COURT — CREDIBILITY OF WITNESSES.

Where the court sits as a jury in an action at law, he is the sole judge of the credibility of witnesses, and may, like the jury, disregard all the testimony of any or all witnesses, and base his findings and verdict on the absolute verities of the case as established before him.

4. JUSTICES OF THE PEACE (§ 86) — ATTACHMENT — APPOINTMENT OF RECEIVER OF ATTACHED PROPERTY — POWER OF JUSTICE OF THE PEACE.

Under the express provisions of Rev. St. 1899, § 3890 (Ann. St. 1906, p. 2151), a justice of the peace is denied the authority to appoint a receiver of attached property in an attachment proceeding before him.

5. JUSTICES OF THE PEACE (§ 86) — ATTACHMENT — PROPERTY SUBJECT — BILLS AND NOTES.

Rev. St. 1899, § 384 (Ann. St. 1906, p. 486), provides that notes and bills of exchange may be seized under attachment issuing out of a court of record. Section 3890 (Ann. St. 1906, p. 2151) provides that the provisions governing attachments in courts of record shall apply to attachments before justices of the peace where not inconsistent with provisions specially applicable to attachments before justices, with certain immaterial exceptions. Held, that a note was subject to seizure under attachment issued out of a justice court.

6. JUSTICES OF THE PEACE (§ 86) — ATTACHMENT — SALE — RIGHTS OF PURCHASER — DEFECTS IN TITLE.

The purchaser of a note at a judicial sale under an attachment issued by a justice of the peace takes only the right, title, and interest of the defendant in attachment, and, if he had no title thereto, the purchaser would acquire none.

7. BILLS AND NOTES (§ 315) — ACTIONS — DECLARATIONS OF LAW.

In an action by the purchaser of a note at a judicial sale before maturity against the maker thereof, the court properly refused a declaration of law that, if plaintiff before purchasing the note knew or had reasonable grounds for knowing that the note had been paid, he could not recover, and that he was chargeable with any information that he may have obtained rel ative to the note having been paid.

8. BILLS AND NOTES (§ 315) — SALE BEFORE MATURITY — RIGHTS OF PURCHASER.

A negotiable note bought before maturity at judicial sale for a pre-existing debt is not subject in the purchaser's hands to the equities existing between the original parties.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Q. A. Tipton against L. C. Christopher. From a judgment of the circuit court affirming a justice's judgment for plaintiff, defendant appeals. Affirmed.

S. H. McCarthy, for appellant. Ward & Collins, for respondent.

REYNOLDS, P. J.

An action commenced before a justice of the peace of Pemiscot county on a note given by the appellant to one J. M. Davis, resulting in a judgment for the plaintiff, respondent here, was appealed to the circuit court and on a trial there before the judge, a jury being waived, plaintiff below, respondent here, again recovered judgment for the note and interest. The note with its indorsements is as follows: "$100.00. December 14th, 1904. December the 14th, 1906, I will pay to the order of J. M. Davis one hundred dollars ($100.00); value received and charge the same to the account of ____, with eight per cent. from date. L. C. Christopher." Indorsed as follows: "J. M. Davis. 11 — 28, 1905. Interest paid on the within note to December 14th, 1905." It appears that in an attachment suit, in which Davis, the payee, was the defendant, this note, with other notes of like character, was levied upon and seized as the property of J. M. Davis, the payee in the note, the note at the time being in the hands of the bank of Steele, with other notes, as collateral to a larger note of which Davis was the maker and which was held by the bank. At the constable's sale under the levy and judgment in the attachment, the note was sold to the plaintiff, respondent here, at a sale which took place in September, 1906; the bank appearing to have surrendered any claim to it. After purchasing the note at this sale, the...