37 Mo. 273 | Mo. | 1866
delivered the opinion of the court.
This was a petition in the nature of a bill in equity for an injunction to restrain the execution of a judgment at law. On a final hearing, the injunction was made perpetual. The principal matter to be decided is, whether the evidence in the case sustained the decree that was rendered in the court below. There are also some questions relating to the admissibility of evidence, which will be considered in the proper place. The most material facts may be stated as follows :— The plaintiffs had executed a promissory note.to the firm of Hooper & Williams of Great Salt Lake City, in Utah, drawn payable to them. This note was endorsed in blank, and sent to their agent in the city of St. Louis for collection at a banking-house where it was made payable. Being protested for non-payment, the agent at St. Louis, under instructions from the owner of the note, sent it to the firm of Belt, Coleman & Co. of Weston, Mo., endorsed in blank for collection, where it was put in suit by them, in their own names, against the makers, the plaintiffs herein. The petition alleges that these endorsements were made for the mere purpose of collection, for the benefit of the payees, and without any valuable consideration moving from the endorsees or either of them. The answer denies this, and avers that the assignments were severally made for a valuable consideration, and that all interest in the note was transferred to the said firm of Belt, Coleman & Co. The evidence that was admissible and competent on the part of the plaintiffs would seem to have been amply sufficient to establish the fact that the endorsements had been made for the purpose of collection only; and no evidence was introduced by the defendants to prove the contrary. There is nothing in the evidence to show that any actual consideration was paid by this firm for the note. It appears that the payees of the note had been indebted to that firm on a note of some four thousand dollars, which had been sent to an
It is not the case of negotiable paper endorsed for value without notice, before due, whether for an actual and valuable consideration paid,.or in payment of a pre-existing debt. The note itself is not delivered; the judgment is not assigned, but only the suit, with authority to receive the proceeds on execution; and execution is now taken out in the names of Belt, Coleman & Co., the agents of the payees, to their use. These agents became insolvent. The plaintiffs had made an arrangement with the payees, the real parties in interest, for the settlement of the balance that remained due upon the note ; and these insolvent agents and their attorneys refuse to obey express instructions from them to send the note or the judgment to them for that purpose, but proceed to take out execution on the judgment to the use of the parties who have no just or lawful title to the money. The evidence does not show that the plaintiffs had fully paid the note, but it does show that they had made a satisfactory arrangement with the payees, the real owners; and this execution was issued in violation of their express instructions. Not to stay this execution would be to allow a fraud to be consummated, and to compel an innocent party to pay a debt twice.
It is claimed on the part of the defendants that the plaintiffs had had an opportunity to make the-defence of payment on the tidal at law; and that, having failed to do so, they cannot now invoke the aid of a court of equity for relief, which would be equivalent to the granting of a new trial. And if the case were, that the real parties in interest in this judgment were now seeking to enforce it by execution against these plaintiffs, denying payment altogether, it might very well be held that they had lost by their negligence all title to equitable relief; and such would be the situation of the defendants here if they had shown themselves to be bona fide owners of this judgment, or purchasers for a valuable consideration, without notice or knowledge of such facts and
But, in the view we had taken of the case, the result would be the same even if such a record appeared. We place the plaintiffs’ title to redress on the ground of fraud. They are entitled to have the defendants enjoined from making a fraudulent use of legal process to their injury by enforcing execution against their property for a debt which is shown to have been paid, at least in part, and to which the defendants are proved to have no title in law or equity.
We have not regarded the testimony of Thomas S. Williams as admissible. The deposition was proved to be a' duplicate of the original, signed by the witness himself, containing what was sworn to by him, and it appeared that he was since deceased. . But it does not appear that the other party had any notice of the time and place of the taking of ■the deposition, nor that there was any opportunity for cross-examination ; and the deposition is not certified as the law requires, but as an affidavit merely. This evidence was clearly inadmissible, and should have been excluded. The objections were not waived.
Objections were made to other depositions on the ground that the witnesses were endorsers of the note.and were prior assignors, and that.they spoke of facts or transactions which took place anterior to the several assignments. So far as this objection was true in fact, it was well taken ; but this would not exclude the more material facts of the testimony, if the objections were fully admitted.
It was further objected that an assignor of a note endorsed in blank for collection merely could not be a witness to prove that fact, or that there was no actual consideration moving
There were some other objections to the several depositions which it is not deemed material to notice. On the whole record, though some points have not been free of difficulty, we have not found any substantial grounds on which we could venture to declare the judgment of the court below erroneous in respect of the relief granted; and we are in-
Judgment affirmed.