Costello v. Fesler

80 Mo. App. 107 | Mo. Ct. App. | 1899

GILL, J.

Plaintiff sued the defendant to recover on two promissory notes — one for $1,750 executed by defendant to the Stanberry Normal School Association, and by it indorsed to plaintiff, the other for $115 executed by defendant to the Bank of Stanberry and in like manner indorsed to plaintiff. There wa's no real controversy as to the smaller note, but as to the note for $1,750, the answer, while admitting its execution, interposed a general denial and pleaded some other defenses relating principally to a want of consideration. At the close of the entire evidence, the court, at plaintiff’s request, directed a verdict in his favor, and from a judgment in accordance therewith, defendant appealed.

The principal part of defendant’s brief is taken up with the contention that the court erred in failing to sustain his demurrer interposed at the close of plaintiff’s evidence, and again that the court erred in giving a peremptory instruction in plaintiff’s favor at the. close of the entire case.

Appellate practice: demmurer to evidence: abstruct: presumption. A consideration of both these objections would involve an examination of the entire evidence adduced at the trial. But since in defendant’s abstract said evidence is not presented, it is clear that we can not con-1 . _ , _ sider these questions, but must assume that the , trial court ruled correctly. This has been so often decided that repetition and citation of authorities seem unnecessary. Defendant has furnished only a small fractional portion of the evidence. This will not answer. “When a party obtains a judgment of á court of competent jurisdiction in his behalf, the presumptions are all in favor of its validity and tbe correctness of tbe means by wbicb it was obtained, and tbe burden is on one wbo alleges error to show it-.”. Brand v. Cannon, 118 Mo. 595; Epstein v. Clo. Co., 67 Mo. App. 221.

This substantially disposes of tbe principal points in defendant’s brief. In tbe absence of a complete abstract of tbe record, we assume that such unquestioned proof or admissions as to tbe matter of indorsements and all tbe issues involved were made as fully justified tbe action of tbe court.

Evidence: Irrelevante indorsee Tbe exclusion of certain testimony from witness Jones was entirely proper since tbe matter thereof was foreign to tbe issues. It bad nothing to do witb^ tbe right of the plaintiff, indorsee, to recover on the notes sued on. Bannister v. Kenton, 46 Mo. App. 462. Judgment affirmed.

All concur.