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Riddlesbarger v. McDaniel
38 Mo. 138
Mo.
1866
Check Treatment
Wagner, Judge,

delivered the opinion of the court.

The respondent in this case moves to dismiss the appeal and strike out the bill of exceptions, because the same was not made and signed at the term in which the judgment was rendered. It appears that damages were assessed by the *140court below upon the dissolution of an injunction ; and that the appellants, at the same term, and within the time prescribed by law, filed their motion for a new trial, which motion was by the court continued till the next term. At the next term, the motion was considered by the court and overruled. The appellants excepted, and filed their bill of exceptions, and appealed to this court. It is contended that as the bill of exceptions was not made and signed during the term at which the judgment was rendered, that therefore it was filed without authority of law, and is a mere nullity, and should be stricken out.

The statute provides that “ exceptions may be written and filed at the time or during the term of the court at which they were taken, and not after ” ; and that “ all exceptions taken during the trial of a cause or issue before the same jury, shall be embraced in the same bill of exceptions ” —R. C. 1855, p. 1264, § 28. It has been the imiform practice in this State, that a bill of exceptions could not be filed after the term had expired at which the judgment was rendered, except by consent of parties, duly entered of record. But here the question is, whether a motion for a new trial can, at the instance of the court, be continued from the term at which the verdict was rendéred until the next succeeding term, and have the effect of carrying with it the cause, so that upon a final determination of the motion exceptions may be preserved by the «party. The statute intends that the exceptions shall be written out and filed during the term, while the cause rests in the breast of the court. But where a motion for a new trial is made at the close of the term, there may be good reasons for continuing it until the next succeeding term for final hearing. And until a final hearing and disposition of the motion, the whole matter would unquestionably rest in the breast of the court, and it would be competent for it, in its discretion for good cause, to sustain the motion and award a new trial. Until this result is reached, it cannot be said that the cause is finally de*141termined. And as the statute requires all exceptions to be embraced in the same bill, it will be correct if filed at the term when the matter is disposed of.

In assessing damages on the dissolution of the injunction, the court permitted testimony to be introduced showing that on the 27th day of December, 1860, the time the injunction was granted, gold was at a premium of from two to three per cent, over Missouri bank paper, and that on the 23d day of January, 1863, vjhen the injunction was dissolved, it was at a premium of forty-seven to forty-eight per cent, over United States legal tender treasury notes. The court assessed the damages at the difference which existed between gold and United States legal tender treasury notes, and this is assigned for error.

The subject matter here enjoined was a sale under a deed of trust, and in this respect comes within the decisions in the cases of Kennedy’s Adm’x v. Hammond, 16 Mo. 34, and St. Louis v. Alexander, 23 Mo. 483. In both these cases, it was held by this court that an injunction to restrain the proceedings of a trustee to sell property, under a deed of trust, was not to be considered such an injunction upon money as to authorize the assessment of damages by the rule of per cent, laid down in the statute alone — R. C. 1855, p. 1249, § 13. In the last case, in speaking of the proper rule of assessment, where the trustee had been enjoined from selling the property, the court said: “ In all such cases, the court, or jury, should determine the amount of injury, by evidence before it, or them, as to the damages sustained, the probable amount that would have been realized, the value of money at the time, and other circumstances tending to show the damages sustained by the creditor in consequence of such injunction.” What is meant by the phrase “ value of money at the time,” is not very apparent. Certain it is, however, the circumstances of this case were not in the contemplation of the mind of the judge when it was written. If the party has been injured in consequence of the injunction, he is entitled to whatever *142damages he has sustained. Destruction of the premises, or their deterioration, expenses attendant on litigation, loss of debts through the insolvency of debtors, where the collection is hindered or restrained by virtue of the injunction, and all matters where the party has suffered loss or. injury, may be taken into the account in assessing damages. We shall enter into no labored argument to show that the act of Congress, passed February 25, 1862, (Oh. 33,) making treasury notes of the United States a legal tender in payment of debts between private .persons, is constitutional. We shall assume such to be the fact. The powerful opinion of Judge Daviess, in the New York Court of Appeals, in the case of The Metropolitan Bank v. Van Dyck, 27 N. Y. 400, seems to exhaust the whole question, and appears to be unanswerable. If, then, the act of Congress is constitutional, and treasury notes are valid legal tenders, they are standards of value, and, in contemplation of law, equal to gold. The rule adopted by the court, in assessing damages, instituted a comparison between them, and placed gold forty-seven or forty-eight per cent, above treasury notes, when the law declares they shall be equal. We are unable to perceive ón what principle- evidence was admissible showing the relative value between gold and Missouri bank notes; wo see no issue made in the case rendering such evidence relevant. The respondent should recover, whatever damages or losses he has sustained by reason of the injunction, and when those damages or losses are ascertained, they may be discharged by the payment of légal tender notes, with the same effect as if paid in gold. Injury may have resulted, but if so, it is damnum absque injuria.

The judgment is reversed, and cause remanded.

Judge Holmes concurs ; Judge Lovelace absent.

Motion for-a re-hearing overruled.

Case Details

Case Name: Riddlesbarger v. McDaniel
Court Name: Supreme Court of Missouri
Date Published: Mar 15, 1866
Citation: 38 Mo. 138
Court Abbreviation: Mo.
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