137 Mo. 584 | Mo. | 1897
Lead Opinion
This suit was begun before E. P. Yanáman, Esq., a justice of the peace within and for Metz township, Yernon county, Missouri. The complaint is in these words (omitting caption): “Plaintiff complains and alleges: That at the times hereinafter mentioned the defendants were partners doing business under the style and firm of Wm. O’Bryan & Company and as such partners are, and were at the times hereinafter mentioned, mine operators, mining and operating in coal at or near the town of Carbon
Said duebills are in the following form, with proper variation for amounts and dates:
“No. 121. Carbon Center, 9-14, 1891.
“This certifies that Mr. C. P. McCarty is entitled to ten and 85-100 dollars, for labor, 9,-7, 8, 9, 10, 11, 12, 1891. Not good if transferred. $10.85.
“Wm. O’Bryan & Co.,
“G-en’l Manager and Bookkeeper, per S.”
Judgment was rendered by the justice in favor of plaintiff for $49.70, and defendants took the case by appeal to the circuit court, in which trial was had on the-day of November, 1892, during the regular
There was obviously no error in refusing to give the instruction number 9 as prayed by defendants.
Again it is clear, we' think, that the only possible defense defendants had to the claim of plaintiff, under the facts in this record, was to the penalty allowed by section 7059, as amended in.1891 by the act approved April 20 of that year, for which plaintiff prayed. But an objection merely to the amount of interest or to the penalty would not justify a sweeping instruction that plaintiff could not recover at all, because defendants might have a right to reduce the recovery, but not to defeat the action in toto. Nothing, we take it, is better established than that, in civil cases, the court is not required to instruct the jury on all questions of law arising in the case, and that, if a party desires an instruction on any particular question, he should request the court to give it. Tetherow v. Railroad Co., 98 Mo.
It simply amounts to non-direction, which, as we have seen, is no ground for reversal in a civil action. The instruction asked being erroneous, no error was committed in refusing to give it.
It can be inferred from the verdict that the jury gave plaintiff more than six per cent interest on the face of the duebills; but, if they did, no such question is raised in the motion for new trial. No opportunity was given the court below to correct the erroneous excess. Alexander v. Relfe, 74 Mo. 495; Sweet v. Maupin, 65 Mo. 68; Weese v. Brown, 102 Mo. 299, 14 S. W. Rep. 945. The motion in arrest does not reach any error apparent on this record, because, notwithstanding the assertion that the act upon which the suit is based is unconstitutional, it does not appear that the suit is based upon such act, save as to the prayer, and it does not appear on the record proper that said prayer was heeded by the court.
It having been found in their opinion that the case'does not “involve the construction of the constitution of the Hnited States or of this state,” it should be transferred to the Kansas City court of appeals for judgment.
Concurrence Opinion
concurs in affirming the judgment, for the reasons given in the foregoing opinion, as well as upon the broader grounds stated by him in State v. Loomis, 115 Mo. 320, 22 S. W. Rep. 353.