5 Mo. 422 | Mo. | 1838
delivered the opinion of the court,
Triplett sued Maupin before a justice of the peace for $33 25. The jury returned a verdict against Maupin for $33 25, upon which the justice rendered judgment against Maupin for $83 25, and Maupin appealed to the circuit court.
On the trial in the circuit court, Triplett had a verdict for $94 07, for which sum the court rendered judgment against Maupin, and thereupon Maupin moved for a new trial, which motion the court overruled, and Maupin appealed to this court.
On the trial, Triplett offered in evidence a bond given by Maupin, Worthington and Triplett, to James enridge, for $65 85, as evidence that Maupin owed him his demand of $33 25, to which bond Jas. A. was a subscribing witness. A witness proved that M’Don-aid, the subscribing witness, was alive and living in St. Louis county, in this State. This witness also proved that he was present when this bond was executed; that he saw the obligor sign it, and that Triplett signed it as security. Witness did not attest it, but believes it same note.
fTM n . . lhe hrst error assigned is, that illegal evidence was admitted on the part of the plaintiff. “ If any suit or set-off be founded upon any instrument of writing, purporting to have been executed by the opposite party, and the same shall have been filed with the justice according to the preceding provisions of this act, such instrument shall be received in evidence on the trial, unless the party, before the jury is sworn, or the trial submitted to the -justice charged to have executed the same, shall deny the execution thereof on oath” — sec. 18, R. C. 1835, p. 361. To entitle a party to read an instrument in evidence without proof of execution, two things are required: There must be an instrument purporting to be executed by the other party; and second, that instrument must have been filed with the justice as the foundation oí the
The next ..error assigned .is, that the judgment is erro-peous, The ¡plaintiff below demanded if33 25 only, the judgment is lor $94 07. If the .jury find .greater dama-§es !llan the plaintiff has .counted for, and the court r.en-judgment according to ,-such finding, it is error —1 Mo. Rep. 137, 615. For these .errors, the judgment of the circuit court ought. to he reversed, and -the .other judges concurring, it is reversed and remanded?