Armstrong v. Prewitt

5 Mo. 476 | Mo. | 1838

McGirk, Judge,

delivered the opinion of the court.

Prewitt, assignee, brought an action of debt by petition and summons. It appears by the record that Prewitt became the assignee of a bond from one White to him, made by the defendant and another person. `The defendant pleaded that the other obhigor was dead, and that White, before his assignment, had obtnined judgment in the county court against the representative of the do-ceased obligor for the amount, and prayed judgment whether the plaintifPshould have his action. The plaim-tiff demurred and had judgment; this is assigned for error.

A judgment a. one of two obligois, “tlu.ac‘ an action against other, Petition in debt a^n^fone of two joint and sev-obligors, payment, issues Plaintiff read the bond in evidence. Dcfen-Judgment that plaintiff recover, ^e'court'acting as a jurj^ did not err in finding for to read his bond, as evidence of in-JhemakbS’ofThe bond was not de-nied. and was in P°8sr®S8I0n of tIle wasnnnaC3SM. ry to find the issue ofpay.nenr,asthe to"* sustain his plea, >E w°ie» of^he*court" «that plaintiff recover,” &c. was at least an indirect response to that issue.

It is a rule of law that a judgment on a several bond (as this bond was) against one obligor, is no bar against an action against the otirv:, unless there is satisfaction or payment. In this case no such fact appears; therefore, the circuit court, on this point, committed no error.

The defendant also pleaded payment, and no assignment to the plaintiff by White. Issues were taken on both these pleas. Ihe plamtni then proved the ment on the trial before the court without a jury. defendant gave no evidence of payment to the court. ihepknntni didnoi rend his bond to the court, and then the defendant prayed the court to non-suit the for want of evidence oí indebtedness, which the court refused, but gave judgment for the plaintiff. But after the motion for a non-suit vas overruled, the plaintiff r,ead to the court the bond and assignment without any tion being made by the defendant. The defendant supposes lie was injured by the refusal to non-suit the plaintiff. My opinion on this point is this, that the had no right to demand a non-suit for defective evidence, But it the evidence, nr his opinion, were detective, yet, if the plaintiff chose to risk his case before the court, he might do so; and if the court found for him, the dant could ask for a new trial, and if this were improper-3y refused, it wculd be error. But if this case were now a question of defective evidence, I would be of opinion the finding is well enough. 7. here was no issue which made it necessary for the plaintiff to prove the bond was made by the defendant; this was admitted, and the also was admitted, and the bond was, by the law, already in the custody of the court. But one question made by the defendant was, whether or not Prewitt uvas entitled to the debt so admitted tobe due by the bond. The record shows this fact was proved by a witness in the presence of the court: nothing more on this point was wanting; so that if the plaintiff had not read his papers as he did, yet his case would have been with him-. Rut he read his papers afterwards without objection being made. There is no error on this point.

But the plaintiff in error still insists the judgment erroneous, because he says the court did not find his plea of payment one way or another. The finding is, that the plaintiff ought to ha ire his debt, &c. Now this is no good finding, as to the question of payment, yet the question is not whether there be error or no ror in the record. But if there be error, yet something else is required. It must be such error as may prejudice the party. How can this man pretend he is injured by the failure of the court to pass on the plea of pay* ment, when the record shows he gave no evidence on this point of any sort. There is then no error in this point. But as to the plea of no assignment, the only question made by that plea was, whether the assignment had been made or not. The court find the plaintiff ought to recover his debt. This cannot, in any possible sense, be true, unless it be true the assignment was made; though his finding is somewhat argumentative, yet the argument is not far-fetched; there can be but one way to look for the facts on which this conclusion arises. I think this case is entirely different in some particulars from the case of Fenwick v. Logan, and of the case of Snedicar v. Jones. There is then no error in this case. The judgment, the other judges concurring herein, is affirmed with costs.