20 Mo. 350 | Mo. | 1855
delivered tbe opinion of tbe court.
This was an action commenced originally before a justice of tbe peace, by tbe plaintiffs, Stone and others, against Corbett. Tbe suit was against Corbe.tt, as assignor of a note executed by John E. Wood to said Corbett, and wbicb Corbett bad assigned to tbe plaintiffs. Tbe amount due on tbe note was $138 50, exclusive of interest, tbe note being originally for $151, payable five months after date, and dated April 16th,. 1849; It was assigned to plaintiffs on tbe same day on wbicb it was executed. On 10th September, before tbe note was due, tbe plaintiffs received from Wood, tbe maker and payer, tbe sum of $12 50, in payment of so much of said note. This-payment was made in boots. On 13th December, 1849, the-plaintiffs commenced their suit against Wood before a justice of tbe peace, and prosecuted it until nulla bona was returned by tbe • constable. However, tbe facts appear upon an agreed statement-made by tbe parties in tbe Circuit Court, upon wbicb statement tbe court found tbe law for tbe plaintiffs, and judgment was-given for plaintiffs. This statement is as follows :
“Defendant assigned tbe note in question to plaintiffs, Aprib 16th, 1849. Tbe note was for $151, dated April 16th, 1849,, and due five month safter date, executed by JohnE. Wood. On, the 10th September, 1849, plaintiffs received of Wood,, in. boots, $12 50, in payment of so much of the note, and credited it thereon. On tbe 13th day of December, 1849, plaintiffs, commenced suit before a justice of tbe peace of Blue township,. and prosecuted suit against Wood to judgment. Execution, issued on tbe 31st day of December, 1849, and on tbe Isinddy of April, 1850, said execution was returned nulla bona. Execution came to tbe bands of tbe constable of Blue township, 21st January, 1850. It is further agreed that, up to tbe time-that plaintiffs commenced suit against Wood, said Wood bad property to tbe amount of $600, in boots, shoes and leather; that, before execution issued against Wood, and on.tbe-day of tbe - judgment against Wood, said Wood sold out;,to Cogswell an
1. In a case like this, where the facts are agreed to and set -down in writing, there was no necessity to ask the court to declare ■the law upon the agreed facts ; that was the duty of the court, •without being asked, and having pronounced judgment upon the .agreed facts, if they will not warrant it, it must be reversed.
2. We have no hesitation in saying the facts will not support the judgment of the court below. There is not due diligence shown by the plaintiffs in prosecuting their suit on the note assigned to them. They suffered two justice’s law days to pass over without bringing their suit; this, too, after the note had been, by partial payment, brought within the jurisdiction of a justice of the peace, before it was due. There is no excuse for this delay ; for this negligence to sue; for this want of diligence. The plaintiffs rely upon the fact, that the note being, when assigned to them, for $151 — an amount over the justice’s jurisdiction — they, although having received part payment, thereby reducing it within the justice’s jurisdiction, were, nevertheless, authorized to wait and sue in the Circuit Court; and there being no term of the Circuit Court until March following the maturity of the note, they could not be charged with laches or want of diligence. There is nothing in this excuse, or rather in ’this view of the case; they themselves do not wait until the Circuit Court in March; but they sue in December previous,
3. Another fatal objection is found in this record. Here, the assignees bring suit against the assignor for $138 50. This is not on a note, but is an action of assumpsit or on account. It is not on a direct promise to pay money, but is on an implied undertaking by the assignor to pay,, if the maker does not; provided due diligence be used by the assignees in coercing or trying to coerce payment from the maker. It is not ‘ ‘ an action on a bond or note for the payment of any sum of money exceeding fifty dollars, exclusive of interest, and not exceeding