Warder, Bushnell & Glessner Co. v. Libby

104 Mo. App. 140 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above.) — 1. Appellant urges that the motion to dismiss was erroneously overruled, as there should have been a sworn statement filed as the cause of action, alleging the loss of the notes and stating their substance. Section 3854, R. S. 1899, requires that if the instrument in writing, upon which the action is founded (which by the preceding section is required to be filed with the justice), is alleged to be lost or destroyed, it shall be sufficient for the plaintiff to file with the justice, the affidavit of himself or some other credible person, stating such loss or destruction, and setting forth the substance of such instrument. The original statement, which the evidence established, was filed with the justice, and a copy of which was a part of the record in the trial court, was composed of a comprehensive petition verified by affidavit of plaintiff’s counsel, comprising among other appropriate allegations, a statement of the loss or destruction of the notes involved, the substance of which were fully set forth, and this petition was accompanied by copies of the notes authenticated by affidavit of an officer of plaintiff. The obvious purpose of the enactment was attained, and in truth the terms of the statute were literally and carefully complied with. It may be remarked that independent of the statute, a court has the power of supplying its missing papers, records or files. Railroad v. Holladay, 131 Mo. 440; State v. Simpson, 62 Mo. 647.

2. Appellant next insists that the indemnifying bond was not approved by the court, and no judgment could be rendered until such approval. Until the enactment of the present statute (R. S. 1879, sec. 3652, now section 745, R. S. 1899) no action at law could be maintained upon such lost instrument, but the remedy o'f its holder was in equity, and usually granted with such conditions of recovery by requirement of indemnifying bond or otherwise, as might be deemed equitable. Barrows v. Million, 43 Mo. App. 79. In construing this section the Supreme Court has held that the petition need not state the bond of indemnity has been given, but the plaintiff must execute the bond before the court can render judgment in his favor. Eans v. Bank, 79 Mo. 182. In the present proceeding the bond was filed prior to the trial, and its approval by the court was sufficiently shown by the entry in the clerk’s minute book, even though such memorandum of approval was not transcribed into the record book proper; such entry will be presumed to have been made by the direction of the court and by the clerk under proper authority. Read v. Sutton, 2 Cush. (Mass.) 115. The bond having been tendered and the judgment rendered thereafter, the presumption might fairly be indulged in that it had been approved and ordered filed by the court. “Acts done which presuppose the existence of other acts to make them legally operative are presumptive proof of the latter. ’ ’ Macey v. Stark, 116 Mo. 481.

3. The case was submitted to the jury upon a charge embracing three instructions asked by plaintiff, two given by the court of. its own instance, and one asked by defendant; two of defendant’s instructions being declined. These instructions submitted the issues raised as favorably to defendant as the law justified, and afforded the jury full latitude to reduce the amount of the notes by such credit in favor of defendant to which they might believe him entitled under the evidence in his behalf and their finding is conclusive upon such controverted questions.

After a-full consideration of all the objections encountered in the brief and argument of defendant, including such as have not been deemed to require specific review and refutation, no reversible error of the trial court has been revealed, and the judgment is affirmed.

Bland, P. J., and Goode, J., concur.