Turner v. Northcut

• Citation: 9 Mo. 251
• Court: Missouri Supreme Court
• Decision Date: 31 July 1845
• Parties: TURNER v. NORTHCUT & MCCARTY.

9 Mo. 251

TURNER

v.NORTHCUT & MCCARTY.

Supreme Court of Missouri.

July Term, 1845.

APPEAL FROM BOONE.

TURNER & GORDON, for Appellant.

I. The record and proceedings in the case of Turner v. McCarty, were illegal and irrelevant as evidence in the cause. There never was a final trial and judgment upon the merits of the cause. The appeal being properly taken from the justice's judgment, and the original papers being filed in the Circuit Court, divested the justice's judgment of all legal effect, and the Circuit Court was possessed of the cause, and was bound to hear, try and determine the cause anew. See Rev. Code, 1835, title Justices' Courts, art. 8, §§ 5, 8. The Circuit Court, upon appeal, is bound to give a judgment of its own. See 5 Mo. R. 124. The Circuit Court did not hear, try and determine the cause, but on the plaintiff's motion dismissed his suit. See the judgment. The dismissal of the suit leaves the plaintiff precisely in the same situation, except as to costs, as before suit brought. The dismissal of an appeal, leaves the judgment of the justice in force. Because, 1st, the appeal was illegally taken, and in law no appeal; 2nd, the appeal dismissed by the court for want of prosecution; and 3d, by consent of the parties.

II. Because the articles in the plaintiff's account were all delivered to the defendant in payment of a demand held on one of the plaintiffs, long prior to the suit of Turner v. McCarty. The last items in the account were dated July 7th, 1842. The suit of Turner v. McCarty was commenced 5th September, 1843. If the articles were delivered to Turner in payment of his demand, prior to the judgment in the case of Turner v. McCarty, the plaintiffs could not recover the value of the articles in the suit. “A voluntary payment made by a party with a knowledge of the circumstances of the case, he cannot recover it back again, because of his ignorance of the law.” The following authorities lay down this principle: Brisbane v. Dacres, 7 Taunton, 144, also reported in 1 Eng. Com. L. R. 43; Belbie v. Lumsby, 2 East, 469; Morris v. Jarvis, 1 Dallas, 148; Bogart v. Evans, 6 Serg. & Rawle, 379; Irvine v. Hanlow, 10 Serg. & Rawle, 219; Wait v. Leggett, 8 Cowen, 195; Clark v. Dutcher, 9 Cowen, 674; Loring v. Mansfield, 17 Mass. R. 349; 2 Marshall's R. 328. If the plaintiffs cannot recover the value of the articles in the account, because they were voluntarily delivered in payment of a debt, or supposed debt, then it follows that the judgment, &c., had in the case of Turner v. McCarty for that supposed debt, is irrelevant and illegal evidence in this cause.

III. But if the record and proceedings in the case of Turner v. McCarty, were legal and relevant evidence, and the judgment a bar to Turner's recovery upon his claim by another suit, yet it is no bar or estoppel to the defense of payment in this suit. 1. Because the payment of the articles in the account was prior in time to the institution of the suit by Turner v. McCarty. 2. Because the payment was a voluntary one, and a suit cannot be sustained to recover the value back again. See authorities referred to in 2nd point above.

IV. The finding of the court ought to have been in favor of the defendant. 1st. Because the articles in the account were proven to have been delivered in payment of a demand held by Turner against McCarty. This fact is proved by the evidence in the cause beyond all doubt. See Turner and Hickman's evidence. 2nd. And if delivered in payment of a debt or supposed liability, the value of them could not be recovered in this suit. See authorities referred to in 2nd point.

V. The payment of the articles by McCarty to Turner, was not a voluntary payment without consideration, but was for and in discharge of a prior, legal subsisting obligation of Turner against McCarty. See the written contract between Turner and McCarty, and the acknowledgment of Turner (which was to be received as evidence). That the obligation was given to induce Turner to vigilance in making the money out of Northcut, and to save McCarty's interest in the land and mills--that Northcut paid off the judgment, and the interest of McCarty in the land and mills was not sold under Keith's and Glenn's judgment.

W. A. ROBARDS, for Appellees. The judgment of the court below should be affirmed, 1. Because it was warranted by the evidence, and the law of the case. 2. Turner's bond could not be used as a set-off in this case; 1st, because it is the individual bond of McCarty; 2nd, because the bill of exceptions shows that he instituted suit upon it before J. W. Hickam, a trial had by a jury, a verdict and judgment rendered against him, which judgment stands in full force, and is a bar to any other suit upon it. 3. The bill of exceptions shows that Turner instituted suit upon the bond offered as a set-off, and a trial was had and a judgment rendered against him; he took an appeal, and before a trial was had in the Circuit Court, he dismissed his appeal. By dismissing his own appeal he cannot render void a judgment against him. The policy of the law will not permit an unsuccessful plaintiff to take an appeal from the judgment of a justice, then dismiss his appeal--make the judgment before the justice a nullity, and commence a second, third or fourth suit upon the same subject-matter. 4. The court did right in excluding from its consid eration the bond of McCarty (offered as a set-off), and all evidence in reference to it, because the judgment rendered before J. W. Hickam, is regular and not reversed. See bill of exceptions.

SCOTT, J.

Northcut and...