Shelton v. Ford

7 Mo. 209 | Mo. | 1841

Opinion of the. Court by

Tompkins, Judge.

Shelton filed in the circuit court of St. Louis county against said John Ford, John Whitehill, and George W. Call, his petition in debt, founded on a bond made by said Ford, Whitehill and Call, to one Rucker, and by Rucker assigned to John G. Shelton, the plaintiff in this action. Judgment was given in the circuit court for Ford and Whitehill. George W. Call not being summoned in the cause.

On the trial of the cause in the circuit court the defendants, Ford and Whitehill, introduced a deposition of said Ball, which they offered to read in evidence. The plaintiff, Shelton, objected to the reading of this deposition, because it had been shown that Call was principal in the bond, and defendants, Ford and Whitehill were his securities. This objection being made, a bond was filed “ to indemnify and harmless, said Call from and on account of all costs that have, accrued or may accrue,” in the action. The circuit court then overruled the objection to the' incompetency Call, and permitted the deposition to be read. Call, in deposition, called the instrument of writing here sued on a note, it being a bond without a condition, and the plaintiff then moved the court to exclude from the consideration of the jury all that part of the deposition that relates to a note stated to have been executed by the deponent and ants, as not applying to the bond sued upon. The court refused to give the instruction, and the plaintiff excepted to the opinion of the court in that matter. The act concerning • • . , secunties, provides thati: where any bond, &c., shall not be paid by the principal debtor according to the tenor thereof, and such bond, or any part thereof, shall be paid by any curity therein, the principal debtor shall refund to such security the amount or value so paid, with interest thereon, at ten per centum per year from the time of such payment.” The rate of interest established by our statute is six per cent. Call, then, is directly interested in the event of .this suit; for, if judgment had been given against the defendants, he would have been liable to pay the excess of ten, over six per cent, per year on ail money his security might have been compelled under such judgment to pay. He then was a witness, with such an interest as rendered him incompetent; but the plaintiff’, ñhelton, did not except to the decision of the court. He objected to the admission J . the deposition in evidence. It is not snihcient to say he objects: he must-save his objection on the record excepting to the opinion of the court in overruling his jection. After the bond of indemnity had been filed, the circuit court thought the objection to Call’s was removed; and for any thing appearing on the record, the defendants might well have supposed the plaintiff too was satisfied, and they thereby might have been induced to omit to introduce other evidence to establish the facts testified to by Call.

It wiu not a Party merely to ob* to the de-°He'le eacep* oxoóption taPP®ar cord,

It is very true that this bond, filed long after Call’s deposition was taken, could not reach back to remove the prejudice with which his interest in the event of the suit might have affected his mind, (for such is the opinion of this court,) but the circuit court thought otherwise, and the defendants surprised by the failure of the plaintiff to except to the decision of the court. Prudence requires that the party dissatisfied with the decision of a court of record, should except to such decision, and not content himself with saying that his objection was overruled by the court.

The plaintiff saved his exception to the decision of the circuit court on his motion to exclude from the consideration of the jury so much of that deposition as relates to a note, stated to have been executed by the deponent' and defendants, as not applying to the bond sued upon. But the objection appears to be rather technical and captious than solid. It is true that in the language of lawyers, a note and a bond are very different instruments. But in popular language they are so often confounded, that lawyers themselves frequently, to make themselves understood, call a single bill obligatory, by the popular name of a note under seal. At all events, the plaintiff having had notice of the taking of this deposition, might have attended, and cross-examined Call, and thereby have made it appear by positive testimony, whether this note of which he speaks, and the bond sued on, were the same instruments of writing; he having neglected to do so, the identity seems fairly to be left to the jury.

In my opinion the circuit court committed no error in its decision on this last point; and the plaintiff having failed to except to the decision of that court in allowing the deposition to be read, and the defendants being thereby induced to rely on the evidence contained in the deposition, its judgment ought to be affirmed; and such being the opinion of the court, it is affirmed.