Rowe v. Schertz

Bland, P. J.

*606

„

*605 — This suit was brought for one year’s accrued and overdue interest before a justice of the peace on the following promissory note:

“Hannibal, Mo., December 3, 1891.

“On or before twenty-two years after date, I promise to pay to the order of Joseph Rowe, at the Farmers & Merchants Bank, of Hannibal, Missouri, Fifteen hundred ($1,500) dollars, for value received, with interest thereon from date until paid at the rate of six per cent per annum. Said interest payable annually, and if the said interest be not paid annually, then it shall be annually added to and become a part of the principal of this note, and bear interest at the same rate as the principal. This note is secured by a deed of trust of even date herewith executed by myself and wife to

*606 George D. Clayton as trustee on part of

sections 15 and 22, township 56, range 5, Ralls county, Missouri, containing 360 acres.

“Nov. 11. Due 12-3-1913. C. P. Schertz.”

The defendant recovered judgment before the justice, from which plaintiff: appealed to the Hannibal court of common pleas. On a trial denovo before the court without a jury, the plaintiff recover’d a judgment for $57.40. From this judgment the defendant duly appealed to this court, after his motions for new trial and in arrest had been overruled.

The transcript filed in the court of common pleas failed to state that the note was filed by the justice for suit. Over the objection of the defendant the justice was called as a witness, and testified that Mr. Robards, attorney for the plaintiff, brought the note and deposited it.with him for suit and at the same time made out the memorandum or statement of the amount due found in the transcript, which is as follows:

“State op Missouri,!

>ss.

“County op Marion, J

“Joseph Rowe, Plaintiff, v. “Charles Schertz,* Defendant.

Suit on a promissory note before Alexander Smeathers, Justice of the Peace, Mason Township.

“March 22d, 1897.

“Now, this day comes John L. Robards, attorney for plaintiff, and files his claim for interest on a certain promissory note dated December 3, 1891, made by Charles P. Schertz, the defendant, payable to Joseph Rowe, the plaintiff, for $1,500, due 22 years after date with six per cent interest per annum, the interest payable annually and if not paid annually, to become part of the principal and bear the same rate of interest; on which the following credits are indorsed: December 13, *607 1892, interest one year $90. November 6, 1893, interest one year, and compound interest thereon to December 3, 1893; February 25th, 1896, interest to date and February 25, 1896, $315.15; leaving a balance of principal on note of $1,184.85; and interest on this reduced principal from one year from February 25, 1896, to February 25, 1897, suit is brought amounting to $71.09.”

That he failed to indorse on the back of the note, the fact that it was filed for suit; that after the attachment by Mr. Robards was made, he (Robards) made a request that he be permitted to take the note and lock it up in his safe until the day set for the hearing of the case, as it would be safer with him than in witness’ office. To this proposition he assented and the note was delivered to Mr. Robards and kept by him until the day set for the hearing, when it was returned, produced on the trial and was sent up with the transcript to the common pleas court. The court on the hearing of this evidence ordered the justice to amend his transcript in accordance with the facts, which was done.

P°^mendent?iees in docket. We discover no error in these rulings of the court. It was competent to take the testimony of the justice to prove a fact which he was required to note in his docket, but of which the docket was silent. State v. Hockaday, 98 Mo. loc. cit. 592; Sutton v. Cole, No. 6772, and Boughton v. Omaha Loan & Trust Co., No. 6879, decided at the January, 1898, term of this court (not yet reported). It was also a proper direction to the justice to amend his transcript to conform to the facts as proven, i. e., that the note was filed for suit before him. R. S. 1889, sec. 6336; Smith v. Chapman, 71 Mo. 217 . The delivery of the note to the justice for suit for the amount (the interest) then due, was all the plaintiff was required or could do, and the failure of the justice *608 to mark the note “filed” or to make an entry of it in his docket, was not the fault of the plaintiff, nor'did these omissions on the part of the justice deprive him of jurisdiction to hear the cause. The delivery of the instrument to the justice for suit, was in contemplation of law a filing of the instrument for suit. Grubbs v. Cones, 57 Mo. 83 ; Baker v. Henry, 63 Mo. 517 ; State v. Grate, 68 Mo. loc. cit. 26; Collins v. Kamman, 55 Mo. App. 464 ; Bensley v. Haeberle, Admr., 20 Mo. App. 648 ; Randall v. Lee, 68 Mo. App. 561 . The temporary withdrawal of the note after being deposited with the justice, did not deprive him of jurisdiction. It was produced at the hearing and forwarded to the court of common pleas with the transcript. No one was prejudiced by its temporary withdrawal. Randall v. Lee, supra; Crenshaw v. Ins. Co., 71 Mo. App. loc. cit. 47.

The appellant contends that according to the contract as expressed in the face of the note, the interest if not paid, became merged in the principal sum of the note and was not due until the full maturity of the note. This reasoning is fallacious. The interest became due annually, and the fact that it was to be compounded with the principal, if not paid, did not have the effect to postpone its payment until the maturity of the whole note, nor did the plaintiff by this stipulation waive his right to sue for and recover the annual instalments of interest as they matured. Waples v. Jones, 62 Mo. 440 ; Carter v. Carter, 41 N. W. Rep. 168 ; s. c., 76 Iowa, 474 ; Stoner v. Evans, 38 Mo. 461 ; Coslio v. Martin, Admr., 11 Mo. App. 251 . Finding no error in the record, the judgment is affirmed.

All concur.