*1 477 nеcessary was announced rule no motion for new trial twice the judgment the final appeal when taken motion after with was are in the to motions which stating exception applies out the proceeding under indeрendent the proceedings, where nature of pro undoubtedly independent an nature of was consideration ceeding. Piekel, App. 176 Mo. cases, Pickel v. In one of these judg money a final alloiving after appеal was from an order Dougherty, case, Graff v. In the other for maintenance. ment upon a ruling of court appeal jurisdiction of ground that the motion to set aside case fraudulently invoked. In neither court has been both of the case. necessary a decision of the rule statement had been saved exceptions pointed no out that cases court exceptions always held that It has ruling of trial court. preserve filed in order exceptions a bill must be saved and judg final made after from an order appeal evidence for review on St. [City of necessary or not. ment, for new trial is whether motion Brooks, Mo. Louis v. decree affirmed. modifying the divorcе of the trial The order Lee, G., concurs. here- C., is Barnett, foregoing opinion PEE. CURIAM:—The Trimble, concur, All adopted court. as the J., absent. Appellant.* Schmeltz, v. Fred Respondent,
Charles City Appeals. March Court of Kansas *2 * Corpus Juris-Cyc. Notes, 8CJ, References: Bills and p. section 89; 1291, p. 983, 45; p. 49; n. section 1363, p. n. n. section n. 1376, p. 1061, 61; Trial, 38 Cyc, section p. 1335, n. n. 36.
Robert E. Rooney for respondent.
Frank 0. appellant. Warren for LEE, C. This is a suit on promissory note. Plaintiff’s claim title that he acquired it by delivery for value father, from his Eli P. Williams, acquired who turn endorsement from thе original payee, Flanagan. L. K. Defendant contends first that proper proof there was not of Flana- gan’s endorsement; secondly, any that in Eli P. event Williams ac- quired the note Flanagan merely security as obliga- for аnother tion had acquired and title; thirdly, absolute and Charles Williams, the plaintiff, course, is not a holder due and can there- fore be met with defenses to an action on the note which existed against his Eli P. assignor, Williams. brought justice aсtion first before peace, gave who for appealed Plaintiff court, defendant. to the circuit jury
where a
court,
was waived
the whole
before
case tried
gave judgment
plaintiff,
thereupon appealed
and defendant
pleadings
court.
There are therefore no formal
justice peace,
statement filed
follows:
before
“ (Omitting
parts)
formal
money
‘to
due as holder for value before
maturity
copied
of thе note
below:
“
‘500
City,
July
Kansas
Mo.,
“ ‘Eighteen
promise
pay
months after
date
the order of
Flanagan,
received, negotiable
L. K.
Hundred
Five
Dollars
value
payable
defalcation or discount
and with interest from
without
at
per
date
the rate of
annum.
6%
“ ‘Fred Schmeltz.’
Flanagan,
‘L. K.
10c
Olive,
“Indorsed
back
7/27/1923’
Revenue Cancelled.
“Principal
$500
Interest at
asked
6%
7/27/1923.”
paper
At the trial in
circuit court
identified
marked
said,
upon; whereupon,
attorney
sued
Exhibit
note
1 in
mаrked Exhibit
evidence.”
offer did
“We offer
which,
of L. K.
how-
endorsement
not-
terms include the
as above
back
note as introduced
ever, appeared
*3
the
of the
exhibit.
part
of the
to
shown, and must be held
have constituted
еndorse-
proper proof of the
there was no
1. Defendant contends
the
proof
by
must
evidence aliunde
that such
be
ment and
endorse-
and the
Roberts,
App. 197,
58 Mo.
case
v.
The case Worrell
ment.
of
479,
that the
346,
S. W.
hold
Hugumin Hinds,
App.
v.
97 Mo.
of
if
thereof,
proof
is not sufficient
the endorsement
mere exhibition of
in
insufficient
proof would be
hold that the
objected to, but do not
Mo.
Hayward, 183
In
Nance v.
case of
objection.
of
the
the absence
pleaded. It
was
in blank
429,
170 W.
an endorsement
App.
S.
point.
on
any proof whatsoever
appear
there
that
was
does not
prove
to
en-
“no
that
was
evidence
states
there
The court’s
holder
by
that
devolves
рayee,” and holds
dorsement
the endorse-
by
aliunde
evidence
prove
note to
the endorsement
of the
ment.
Dunlap Kelly,
case of
v.
105 Mo.
tiff was the which note, by several mesne en- had possession. dorsements returned to his The held he that might original payee, having have sued on his title as but that al- leged prove alleged. the intermediate he must them as endorsements foregoing cases, by appellant, position
None of the cited sustаin in in that an exhibition of the endorsement evidence is insufficient objection by the absence of defendant. endorsement,
In addition to the bare exhibition of the witness testifying Eli P. he the note Williams, after that transferred to replied, value, why same, asked not endorse and son was did already by the maker.” to, “Didn’t have was endorsed that K. appeared that of L. only which the note was endorsement on “maker” in- original payee, use of the word and the slip “рayee” evidently a mere of tlft by of stead the witness until time or this objection was made at tbe Moreover, no tongue. sufficiency its of of the 'fact the endorsement appeal, to merit appellant of is without prоof. that this contention We hold 121), that the endorsement 213 S. W. and (Baade (Mo.), v. Cramer delivery. S. negotiation future support to [R. was sufficient 174 S. W. Butler, Carter v. secs. received him from that the note was Eli Williams testified was identified as Ex- which a contract with Flanagan in connection holding the note as he was that he knew testified A. He further hibit thought that still had pledge, but stated in Exhibit A offered Defendant son. right sell it to his had objected. plaintiff evidence, to any had evidence if “The Thаt would be admissible Court: un- testimony you have no suspicion, but here outside until is admissible the contract don’t believe I usual transaction. al- yet, you have made showing. I believe don’t you make some kind. making showing of this difficulty though appreсiate pur- offering exhibit at this time I am Warren: “Mr. alleged time it showing this note at the pose to the court that posses- was, realty, in the plaintiff have transferred to the pledgee and not Eli. P. who held the same sion of owner; dispоse had no that he Rooney: object the evidence to the introduction of We “Mr. showing its incompetent, immaterial, irrelevant and the reason it’s parties suit, parties be a to this face to contract between not, man- evidence, contents of said contract under the binding upon ner this case. objection
“The will be sustained.” Court: *4 sustaining objection in action of the court this one of the is grounds appeal. of defendant’s
A pledgee, mere distinguished mortgаgee, as does not obtain thing pledged, only title to the possession, possessory but with a lien Cyc. security. Upon obligation as default in the for secur 839.] [31 ing which pledge given, may proceed is it has been said that he against personally the debtor obligation, may on that or he enforce security, by by either a foreclosure in equity, or sale pledge upon reasonable notice to debtor. Notes to Lucketts [See Townsend, v. 49 Amer. Dec. 3 730, Tex. “nоnpayment But 119.] original stipulated debt at the time does not work a forfeiture of pledge by either the civil or at the common law.” [Richardson v. 132 Ashby, 238, l. Mo. c. 245, 33 S. W. stipulation A in the 806.] pledge nonpayment such the title shall become in absоlute the pledgee, is void. Am. v. Townsend, 119, 3 Tex. 49 Dec. [Lucketts Even power where a given, sale is such sale must be a fair 723.]
481 Bank, 182 National v. Continental good [Hagan faith. in one, made 2 171, Kent’s Comm. S. W. 583.] Mo. goes therefore, note, Eli P. Williams’ interest nаture of point the terms of very to it. On that essence of sell (identified as which he admitted held the note
the contract under he any prima- If by court), Exhibit A and excluded were relevant. suggested necessary, facie were as evidence of the nature of his title by re- court, originally it he was furnished his admission that merely beyond ceived pledge. the note as a of a the absence title that of a pledgee, justification bare sale, the title of whiсh he attempted pass plaintiff to defective Revised ivas under section Statutes which reads as follows: defective person negotiates an instrument title of “The instrument, obtained the chapter when he meaning of
within or fеar, force and other duress or thereto, fraud, any signature or negotiates consideration, when he illegal or an means, unlawful to a circumstances amount under such faith, or in breach of it ’’ fraud. plaintiff’s Eli trans- in the title When the defect upon plaintiff thrown feror, shown, the burden ivas then to was thus acquired note as a holder in due course. prove that he S. [R. Savings Bank, 845; Peoples v. Miller The
sec. (Mo. County Savings App.), Bank v. Mills W. Johnson S. 127 W. S.
Eli P. Williams testified that he the note received A; under the contract identified as Exhibit that about Jan- excluded uary 1, 1925, plaintiff; he offered to son, sell the to his that de- inquire fendant Schmeltz came to the note time about ahead of I th'oug'ht very done peculiar way, “and it I had a kind of look that expect pay put didn’t to That’s what my guard brought me on my attention; say he didn’t inso ’’ words, many so appeared but he so. “Q. you thought you ought So get it into in- the hands of an purchaser? nocent A. I thought good piece property to sell. “Q. you say Did your son at the him time sold the note to
that Mr. Schmeltz peculiar? looked No, rather A. did not. ‘‘Q. you say Did anything to him ? No, about it A. sir. *5 “Q. you say Did anything your son about originally it pledge at all? No, sir. A. “Q. you Just said had a note here? A. Yes, sir. “Q. And ‘I will sell you’ you say did ‘I give will it to you your for interest in the Snoddy matter,’ you say? or what did Snoddy in the interest for his him it to trade I would him told
A. I matter. pledge as a having held that thing about say a “Q. did. not You A,. sir, I not. did No,
at all? Y'es. A. holding that? you were “Q. kneiv You A. your son? right it to to sell no you had “Q. know Didn’t ’’so. it; still think to sell have a I did de- several Williams made P. Eli further shows that The evidence did only one who payment, that he for defendant mands on filing arranged it was he so, upon and that default plaintiff, Charles however, that he did so testified, note. He point. that plaintiff himself silent on but is ex- his father in acquired the Plaintiff note from testified that “obligation” party a third’ of change $5000' a half interested interest); half that he did (of already other which his fаther owned the defendant, and never saw such payment from personally demand not made; that made, satisfied” demand had demand but “was A; pos- he took nothing as Exhibit knew of contract known bought elementary question session of the note at the time assignor’s (the of which alleged of title to defectiveness proof upon plaintiff threw the he was holder burden to show that course) hinged chiefly contract, in due known as terms of Exhibit “A,” through which that title came. Thе mere denial knowledge of contract, had been excluded preventing evidence at objection; own thus cross-examination thereon, based compliance not a sufficient with the burden of proof which the law cast him. n due question of whether or plaintiff.was holder in course was an issue this case, and was one for the trier of the facts under competent all the and relevant evidence offered It thereon. was error in the triаl court to exclude Exhibit “A.” The ease should therefore be reversed and Barnett, G., remanded. concur. opinion foregoing Lee, C., approved is
PER CURIAM:—The court. The of this circuit adopted cause remanded. accordingly reversed and Bland and absent, JJ„ concur; Trimble, Arnold, J-,