Stillwell v. Craig

58 Mo. 24 | Mo. | 1874

Lewis, Judge,

delivered the opinion of the court.

Suit was instituted in the Hannibal Court of Common Pleas on a note for $800, given by the defendants Craig, Garth and Gilkey to defendant, The State Insurance Company of Missouri, and by the latter indorsed and delivered for value to the plaintiff. The note was expressed to be “for value received in certificate of stock No. 650, for 10 shares of the capital stock of the said State Insurance Company of the ■State of Missouri,” and payable to the order of the Treasurer “in instalments not to exceed ten per cent, on each share at thirty days notice of call from the Board of Directors.”

Process was served on the Insurance Company in Mason township, Marion county, and on the other defendants in Buchanan county, where they resided.

The defendants, Craig, Garth and Gilkey, after an ineffectual motion to quash the sheriff’s return as to them, and a “'plea to the jurisdiction” which was stricken out, demurred to the petition on the following grounds: “T. Because the court has no jurisdiction of the persons of the defendants Craig, Garth and Gilkey, or either of them. 2. Because there is a defect of parties defendant, and there are two causes of action improperly joined in this action; one cause of action against the State Insurance Company alone, and one against the defendants Craig, Garth and Gilkey alone. 3. Because the defendant, The State Insurance Company of Missouri, is improperly joined, in this action, with the defendants Craig, Garth and Gilkey.”

■ This demurrer was sustained, and judgment was rendered for the defendants. The sustaining of the demurrer is the only matter for revision here, which appears in the record.

The second section of the act of March 25th, 1868, relating to the Hannibal Court of Common Pleas, gives to that court “within the limits of Mason and Miller townships, in the county of Marion, in this State, exclusive original jurisdiction in all civil actions, both in law and equity.” The third section is as follows: “Section 3. No person residing within the limits of .Marion county, and beyond the limits of Mason and *29Miller townships shall be sued in said Hannibal Court of Common Pleas, nor shall any person residing within the limits of said townships be sued in the Circuit Court for the county of Marion, except in cases where there are more defendants than one in the county of Marion, some of whom remain within and some of whom reside without the limits of Mason and Miller townships ; in which event suit may be brought either in the said Hannibal Court of Common Pleas, or in the Circuit Court for Marion county, except as hereinafter provided.”

The defendants contend that under these provisions, a defendant residing and found outside of Marion county cannot be sued in the Hannibal Court of Common Pleas, under any circumstances; that though, "where there' are several defendants, some may live within and some without the townships named, yet all must be residents of Marion county, or there will be no jurisdiction. Such a construction is inadmissible. The Practice Act provides (Wagn. Stat., p. 1005, § 1), that “when there are several defendants and they reside in different counties, the suit may be brought in any such county:’ A plaintiff would be deprived of all benefit of this provision, in any case like the present, if we adopt the interpretation claimed. If, under the first clause in the third section, he could not sue in the Common Pleas, it is equally true that the second would prohibit his suing in the Circuit Court. So that, in case of one defendant living in Mason or Miller township, and another in a different comity, no suit could be brought in Marion county at all. The statute intends no such hindrance of justice. By admitting the jurisdiction, we give effect to the Practice Act without violating any express prohibition in the Common Pleas Law, and this- is the only possible way to do so. We thus harmonize the two provisions and obey one of the first canons of interpretation. •

The 8th section of the Common Pleas Act fully confirms this view, in directing that “the practice, process and proceedings in said Hannibal Court of Common Pleas shall be the same in all respects as is or may be provided by law for *30the government of Circuit Courts of this State, &c.” The act in all its purport and intents, places the court upon the same footing within its territorial limits, as that of the Circuit Courts in their respective counties.

The second and third grounds of demurrer introduced a discussion of the character of the instrument sued on. If it is not a negotiable promissory note, the action'is improperly brought against makers and assignors together. But if it is such, there is no misjoinder of parties or of causes of action. Our statutory requisites for negotiable paper are fully met in this instrument. If it is a promissory note at all, it is “for the payment of money to the payee therein named,” and is “expressed to be for value received.” But the defendants insist that it lacks in two particulars, the certainty essential to make it a promissory note, viz:' As to amount, .and as to time of payment. The amount must, it is true, appear with absolute certainty, and cannot be left to depend on unsettled contingencies. The old maxim, “id certum est, quod certum reddi potest,” is to be excluded from consideration. But no difficulty is apparent here. The sum which the promissors are to pay is $800, neither more nor less.

As to time of payment, the law is less exacting. The maxim referred to is admissible. Contingencies in this particular must be exceedingly remote, in order to vitiate the paper for negotiable capacity. In Washington County Mut. Ins. Co. vs. Miller, (26 Vt., 77,) a note for twenty-one dollars, payable “in such portions and at such time or times as the said company may, agreeably to their act of incorporation, require,” was held to be a promissory note for the sum specified, so as to determine a question of jurisdiction; but a doubt was expressed whether it would be such in a commercial sense. The doubt, however, as it seems to me, is not justified by the reasoning of the opinion, or by the authorities which it cites.

In President, Directors, &c. vs. Hurtin, (9 Johns., 217,) a similar instrument was held to be a good promissory note, as ‘being “payable in money, and payable absolutely, and not *31depending on any contingency.” In the element of certainty as to time of payment, I can perceive no difference in principle between such a note and one payable on demand. Hence, if the note under consideration be transferable at all, I have no hesitation in saying that it is negotiable, at least to the extent of authorizing a suit jointly against makers and indorser.

But a more serious question is suggested, which counsel have argued with much ability, and which is yet really not comprehended in this record. Had the Insurance Company lawful authority, under its charter, to negotiate or assign the note at all ? The demurrer does not touch this inquiry. It is a question not of jurisdiction, or of misjoinder, but of a right of action jn the plaintiff. If the corporation had no power to transfer the note, the plaintiff here could not maintain an action on it in any court or by any form of petition.

The demurrer does not object that the petition fails to state facts sufficient to constitute a cause of action ; nor yet, that there is any defect of a party plaintiff. We might nevertheless assume that, as the petition now appears, the plaintiff has no standing in court, for want of authority in the corporation to assign to a stranger a note which it holds as part of the trust fund representing- its capital stock. But, as this poiut was not reached in the court below, and the error, if any, is against the successful party, we think it best not to make a case outside of the record as it stands. If there are any special facts or considerations by which the plaintiff may establish a right to sue as indorsee in this particular case, he should be allowed an opportunity to use them. The jurisdiction over the parties being unquestionable, and there being no misjoinder, the court below erred in sustaining the demurrer.

The judgment is therefore reversed, and the cause remanded.

Judge Wagner absent; the other judges concur.