57 Mo. App. 415 | Mo. Ct. App. | 1894
— The plaintiff recovered a judgment against the defendant in the circuit court of the city of St. Louis on March 6,1879, for $885.69, bearing interest at the rate of ten per centum per annum. The defendant appealed to this court, which affirmed the judgment. Corley v. MeKeag, 9 Mo. App. 38. On the sixteenth of March, 1893, the plaintiff instituted the present action, averring that no part of said judgment had been paid, and praying for another judgment for the sum of $885.69, with interest thereon at the rate of ten per centum per annum from date of original judgment. The court, upon the hearing of the cause,
The first assignment rests on the following facts: The original action was based upon a note executed by the defendant. The defendant in that action claimed that the note had been paid, and, as evidencing such payment, set out an agreement between himself and the plaintiff. The plaintiff first replied, pleading the statute of frauds in avoidance of the agreement, but subsequently withdrew that replication and filed another containing a mere general denial of the answer. 'Upon the first trial the defendant offered in evidence this abandoned reply of the plaintiff, but the court ruled it out, holding that abandoned pleadings are not evidence in this state. That ruling of the trial court this court affirmed, although it would seem that such ruling was erroneous, as shown by a subsequent decision of the supreme court in Anderson v. McPike, 86 Mo. 293.
In the present action the defendant again attempted in his answer to set up the identical defense to the judgment which he had set up in his suit upon the note, and in support thereof introduced the bill of exceptions in the original suit, which the trial court ruled out. This is the first error complained of.
The defendant, if we understand his argument at all, conceives the law to be that, among the accidents and mistakes in judgments against which courts of equity will relieve, are accidents of the former trial, and mistakes made at such trial by the court in its rulings upon the evidence. This view is so erroneous, that its
Our statute provides that judgments and orders for money upon contracts bearing more than six per cent, interest shall bear the same interest as borne by such contracts. R. S. 1889, sec. 5974. The note sued on bore ten per centum interest, and the first judgment rendered bore ten per centum interest. The court, therefore, did not err in rendering a judgment computing the principal and interest at that rate, the new judgment to bear ten per cent, interest again. It is true that this results in a compounding of the interest, but the statute admits of no other construction. State ex rel. v. Vogel, 14 Mo. App. 187. In Buchan v. Broadwell, 88 Mo. 31, a judgment bearing fifteen per cent, interest per annum has been upheld. In Ransom v. Cobb, 67 Mo. 375, interest on penal interest of one hundred per centum per annum, and in Murdock v. Lewis, 26 Mo. App. 234, a judgment with ten per centum interest with annual rests, was also upheld. As the contract was made long anterior to the act of April 25, 1891 (Laws 1891, p. 169), which forbids the taking of interest in excess of eight per centum, that law has no bearing upon the question before us.