4 Mo. App. 404 | Mo. Ct. App. | 1877
delivered the opinion of the court
This action was begun July 5, 1876, before a justice of the peace of St. Louis County, on the following note :
“ $250.00. St. Louis, April 5th, 1877.
“ Sixty days after date I promise to pay to the order of P. H. Biermann two hundred and fifty dollars, for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of ten per cent per annum.
“Albert L. AubiN.”
The note is endorsed, “ P. H. Biermann, C. Geyer & Son, Christian E. Sanners, John Meis, C. D. Hassmeyer.”
Together with the note, and attached to it, was filed a notarial certificate of demand, notice, and protest, verified by affidavit. Ferdinand and Christian Geyer filed an affidavit denying the execution of the note by them. On trial, judgment was rendered against all the defendants, except Hassmeyer, not served. The Geyers appealed. The judgment of the justice was affirmed in the Circuit Court, for want of prosecution of the appeal. A motion in arrest of judgment was filed, on the ground that the justice of the peace had no jurisdiction of the action, and that the Circuit Court had, therefore, no jurisdiction of the appeal. This motion was overruled; and defendants bring the cause here by appeal.
In the county of St. Louis, at the time of the commencement and trial of this action, justices of the peace had juris
Counsel for respondent ask: “ If the action against the endorser is not an action on the note, but upon a separate contract, then upon what principles of law can you at all sue the maker and endorser jointly?” We do not think that it has ever been contended that this can be done, on any “principle of law.” In this State it is done in the Circuit Court by virtue of the statute. Wag. Stat. 1001, sec. 7. A similar provision existed in the old Practice Act. Sess. Acts, 1849, p. 76, sec. 8; Holland v. Hunton, 15 Mo. 478. How it can be done in the absence of any statute, and in view of these two decisions of the Supreme Court of the State, it is for those to say who do it.
That there is something to be said in favor of the view that the Legislature probably intended to confer jurisdiction upon a justice in an action upon a note or bill, against every party to the commercial paper, whether his liability was that of drawer, endorser, or maker, and thus to give increased currency to negotiable notes by furnishing a speedy remedy to the holder, we are not disposed to deny; and the fact that it has been the general practice to sue the endorser before a justice, on the note, — to sue him jointly with the maker, and to sue him for an amount in excess of the jurisdiction of the justice on contract, — may lead, perhaps, to serious complications in some cases. But this is a matter for which we are in no way responsible. The case of Murray v. Sunderland was not reported, and could not be generally known; but the case of Stone v. Corbett has been before the profession for a quarter of a century, and the principle decided in the two cases is substantially the same.
But, be this as it may, we do not feel justified in disregarding these two decisions of the highest tribunal in the
The judgment of the Circuit Court is reversed and the cause dismissed.