126 Mo. 159 | Mo. | 1894
Lead Opinion
— This is an appeal by J; H. Lipscomb, J. M. Fox, D. C. Mastin and Frank Jones, from a judgment in favor of O. A. Jones, respondent, one of the defendants in said cause, against said appellants on a verdict in his favor for the sum of $4,302.25 damages assessed upon an injunction bond given in said cause, in which said appellants were the sureties of the 'plaintiff, and in which the injunction was dissolved. The case has been pending for ten years, and this is the fourth time that the issues between these parties have been brought before the appellate courts. 27 Mo. App. 502; 98 Mo. 252; 108 Mo. 431. In the first and last of these reports will be found a full statement of the case. So far as any additional statement is necessary it will be made in the course of the opinion.
The appellants contend that the judgment should be reversed for the following alleged errors of the trial court: First, in refusing to sustain appellant’s motion to suppress the deposition of one J. G-. Barnes, for the reason that it was taken in Denver, Colorado, on September 2, and respondent had given the appellants notice that he would take depositions in Chicago, Illinois, on September 1, and, the appellants having attended under the other notice, it was impossible for them or their attorney to be present in Denver on September 2. The evidence on the hearing of this motion discloses no ground for suppressing the deposition, except the mere fact that notice was given to take depositions at one place, on one day, and' at another place on the next day, and this alone would not authorize the suppression of a deposition taken in conformity with all the requirements of the statute, the statute in this regard only providing “That not more than one
Second, in admitting evidence in regard to the real estate secured by the deed of trust, a sale under which was restrained in the same case by a second order upon another bond to which appellants were not sureties. The evidence objected to was admitted by the court only as against Nolan, the principal in both bonds, and was so stated by the court at the time, and afterwards, by instruction, was expressly taken from the consideration of the jury in assessing damages in the case against either principal or sureties. Conceding that the evidence objected to was inadmissible, it was not of such a prejudicial character to the appellants that it could not be cured, as it was in this instance, by the instruction taking it from the consideration of the jury. Griffith v. Hanks, 91 Mo. 116; Stephens v. Railroad, 96 Mo. 207; Durant v. Lexington, etc., Co., 97 Mo. 67.
Third, in permitting a recovery upon the theory that the amount of the note and interest secured by the mortgage, the sale under which was enjoined, furnished the proper measure of damages, “instead of the amount which would have been realized from the chattel mortgage sale and interest.” This contention is answered by the instruction of the court in which the jury were told ‘ ‘that in no event can your verdict exceed the reasonable value of said property embraced in the chattel mortgage at the time when the same was advertised thereunder with six per cent, interest thereon.”
Fourth, in rejecting appellants’ offer to prove in reduction of damages that a receiver appointed by the court had sold the personal property in question and held the proceeds of such sale subject to the order of the court. The court committed no error in refusing this offer. The fact offered to be proved did not
Fifth, in-admitting in evidence a duly certified fee bill of the costs taxed against the respondent in the injunction suit, upon proof of the assignment thereof to him for value by the parties in whose favor they were taxed. It was not objected on the trial that these costs were not regularly taxed and assigned, and the bill under such circumstances tended to prove the amount of money laid out and expended by the respondent for costs in defending the injunction suit, and was admissible in evidence. But it appears that the aggregate amount thereof was left blank in , the motion for assessment of damages, and on the trial the respondent was permitted to fill in that amount .in the blank left for that purpose, whereupon the appellants moved the court to grant them a continuance, for the purpose of enabling them to have the costs retaxed, which the court refused to do, and this action of the court seems to be the real ground of complaint under this head. The granting of continuances in civil cases is largely within the discretion of the trial court. It must be presumed that the costs were taxed in due and regular order soon after the termination of the injunction proceedings some seven or eight years before this motion was made. The amount thereof could have been readily ascertained, by the simple process of addition upon the clerk’s fee book. The appellants must have known that in this action a claim would be made for those costs, and they ought to have been prepared to meet it. The court was guilty of no abuse of its discretion in refusing the application for a continuance, and of no error in admitting the fee bill. It goes without saying
Sixth, in failing, in some way, to discharge its duty on the occasion of counsel for respondents commenting upon an assumed fact, outside of the record and foreign to the issue, in his address to the jury. The appellants excepted to the remarks, the court reproved the counsel for making them, and he thereupon withdrew them. He might, and perhaps ought to, have apologized to the court and the jury for going out of the record, but it was certainly not fatal error for the court not to require him to do.so.
The foregoing are all the points made in the brief of counsel for the reversal of the judgment, but in the argument it is further suggested that, as the evidence tended to prove that the motion to dissolve the injunction on the bond in this case was heard and tried with another motion to dissolve, a portion of the attorney’s fees and personal expenses of the respondent, ought to be apportioned to the other case, and that, although the jury were instructed to make such apportionment, it gave them no guide or standard by which to make it. If the evidence disclosed the fact that a part of' such fees and expenses were not properly chargeable to the' sureties on the bond in this case, they 'should have asked the court to so instruct the jury, pointing out, if to them it seemed possible, a definite rule by which a certain part only of such charges should be apportioned to the sureties in this case. In the absence of such request they can not complain of this instruction, for it is now well settled law in this state, that trial courts in civil cases are not required to instruct unless requested so to do.
As to the action of the court upon the evidence on this branch of the case, it is only necessary to say that neither the evidence, nor the action of the court
Rehearing
ON MOTION FOR REHEARING.
— On motion for rehearing, our attention is called to the fact that the judgment was entered up, not only for the amount of. the verdict and costs in this case, but for the costs in the injunction suit. This, of course, was erroneous and the judgment will be modified by striking out the words “as well as the costs upon the trial of the injunction suit,” and as thus modified the judgment will be affirmed, and the costs of this appeal adjudged in favor of the appellants against the respondents.