Farmers' & Drovers' Bank v. Williamson

| Mo. | Oct 15, 1875

Sherwood, Judge,

delivered the opinion of the court.

The defendants were sued before a justice of the peace, as the makers of a promissory note for $295.65, made payable to the order of A. A. Bainbridge at the Eirst National Bank of Kansas City, and purporting to be endorsed in blank by the payee and one Warner. Judgment going for plaintiff, the cause was appealed to the court from which this appeal comes, where, upon a trial de novo, the plaintiff was again successful. It is alleged here that two errors were committed during the trial of the cause which authorize a reversal; one in refusing the application of defendant (Williamson) for a continuance; the other in refusing to grant at his request an instruction in the nature of a demurrer to the evidence adduced.

I.

The application for a continuance was very properly overruled. The absent witness was Yail, a co-defendant and comaker of the note. The most palpable lack of diligence is manifest on the face of the application. No subpoena was issued for the witness, who resided in Jackson county, and the singular excuse is given “because within the last week he has not been within the.jurisdiction of this court.” Nor is the application at all strengthened by the allegation therein made as to the absence of the attorney (a member of a law firm) who had the control and management of the case. The continuance of a cause on such a ground must rest almost, if not altogether, in the sound discretion of the court, and there is nothing whatever brought to our attention here to indicate that' the case is one of any intricacy, or that there has been an unsound exercise of that discretion.

II.

The testimony of the assistant cashier of the plaintiff, which was received without objection, tended to show that the note in suit was transferred by the payee to the plaintiff. And the testimony also had a tendency to show that plaintiff was doing business as a bank, in the name in which suit was brought, had a president and other officers, kept a discount register, and was the lawful holder and owner of the note for value, and this was sufficient. And it was quite immaterial whether the plaintiff was an association of persons or a corporation, as in either case it would not preclude the purchase of the note. But defendants’ counsel have erroneously assumed that plaintiff is a corporation, and on that ground demanded proof establishing that fact. But the record in nowise bears them out in this assumption. Even, however, did the record disclose this fact, it is not seen how this would help the defendant’s case, for in trials before a justice of the peace, in the absence of anything to the contrary, the defendant is presumed to plead the general issue. (Reed vs. Snodgrass, 55 Mo., 180" court="Mo." date_filed="1874-01-15" href="https://app.midpage.ai/document/reed-v-snodgrass-8004358?utm_source=webapp" opinion_id="8004358">55 Mo., 180.) This plea as a matter of course goes to the merits and admits the corporate capacity of the plaintiff, and the ability to sue; and it would seem but reasonable that a corporation should occupy the same footing in this regard as a natural person. (Ang. & Ames Corp., § 633, and cas. cited.)

For these reasons the instruction in the nature of a demurrer to the evidence, asserting in substance that the plaintiff was not entitled to recover, was properly refused, and the judgment of the trial court is accordingly affirmed.

All the other judges concur.