Kent v. Gray , 26 Ark. 142 ( 1870 )

Bowen, J.

The appellant, the administrator of the estate of M. T, Cooper, deceased, brought suit, before a justice of the peace, upon a mutilated promissory note, executed by T. B. Kent. This note bears date, January 1, 1862, but the amount of the note cannot be be determined, on account of certain portions thereof being destroyed. At the trial before the justice of the peace, the appellant, Kent, moved to dismiss the cause, on the ground that the note, or demand sued on, was not the individual property of the plaintiff, which motion the court, after having heard the evidence, sustained and dismissed the suit. "Whereupon the plaintiff appealed to the circuit court.

In the circuit court, the defendant, Kent, plead the general issue; also, plead specially that the note sued on was not the property of the plaintiff, as administrator of M. T. Cooper, de-«eased, but the property of John Jackson, the surviving partner of the firm of John Jackson & Co., upon which pleas issue was joined.

The cause was submitted to the court, sitting as a jury, which gave judgment for the plaintiff in the sum of $96 debt, and $69 damages, with costs of suit. Defendant moved for a new trial, which was overruled, and the cause is here on. appeal of the defendant.

The new trial was moved on the ground that the finding was not supported by the evidence; that the verdict and judgment are not supported by the law of the land, and that the statements of John Jackson were received as testimony, whereas, by the law of the land, it should have been excluded.

The record discloses that the note sued on, was executed to TIalsey & Erwin, on the 1st of January, 1861, and was payable to them, or their order; that it was indorsed by them, in blank, and delivered, in payment for goods, to the firm of John Jackson & Co., of which firm Cooper was, in his life time, a partner, and was in Cooper’s possession, who had charge of the books and papers; that the note was, with others, buried during the war, and was so defaced that the amount of it could not be determined, only the words, “dred and four and $>9-dollars,” being discernable. The defendant, Kent, swears that the account with Halsey & Erwin, for which he gave the note, was $97, but presumes that, as the note seems to be for more than $100, there must have been some other transactions included in it, but what the additional amount was, he could not say. Halsey and Erwin both swear that the note was due. one day after date; that it was indorsed in blank, and it appears from the note that it bore interest at the rate of ten per cent, per annum.

But was the note the property of the estate of Cooper, or that of John Jackson, surviving partner of the firm of John Jackson & Co., of which Cooper had been a member? The note, as before stated, was indorsed in blank, by Halsey & Erwin, to the firm of John Jackson & Co. Cooper died during the war and this note, with other papers, were in the possession of his widow, and by her delivered to the administrator, Gray, as part of the estate. The record, however, further discloses that Cooper was the book-keeper, and had charge of the books, notes and accounts — also, that before the death of Cooper, the firm of John Jackson had quit business, as merchants, and were winding up their affairs — also, that at onetime John Jackson, as surviving partner, received other claims from Gray, as administrator, but declined to take this note — that at other times he claimed it as firm property.

We will not, of course, express any opinion as to the weight of evidence; it being well settled that this court will not reverse the judgment of the court below on that ground. Mayers v. State, 2 Eng. 174; Drennan v. Brown, 5 Eng. 138; Spratt v. Vaughan, Ib. 474; Hendry v. Sharp, 13 Ark. 306; Wass v. State, 17 Ark. 327; Ib. 478; McLure v. Hart, 19 Ark. 119; Mason v. Edgington, 23 Ark. 208.

The note was indorsed in blank, and was transferable by delivery. The evidence conduces to show that it was among Cooper’s papers, and it appears that Jackson declined to receive it from Gray, when offered. The court below must have found, on this evidence, that there was a transfer, and having so found, we are inclined not to interfere with the finding, but take it as true. We confess we do not understand exactly why or how the learned judge, sitting as a jury, found the sum of ninety-six dollars, principal, to be due — there being no plea of payment or set off, for, unless his payment was founded upon the note for one hundred and four dollars and ninety-three cents, filed with the justice, the whole matter was “ coram nonjudice,” and the suit should have been dismissed; but the judgment for ninety-six dollars, principal, being an error in favor of the defendant, he cannot complain. Reeves v. Clarke, 5 Ark. 27; Pendleton v. Fowler, 6 Ark. 41; Latham v. Jones, Ib. 371; Everett v. Clements, 9 Ark. 480; Collins v. Woodruff, Ib. 463; Butler v. Wilson, 10 Ark. 316.

It is insisted here that the suit should he dismissed for want of jurisdiction in the court below, because no cause of action was filed with the justice of the peace before the issuance of the summons; but the record recites as part of the transcript of the justice, before whom the suit was brought, that the plaintiff “filed before me, one note against T. Blake Kent, for one hundred and four dollars and ninety-three cents,” etc., and the court is forced to take the record as true, the defendant not having taken proper steps in the court below to contest it.

It is also insisted that on the trial of the cause, evidence of the statements of John Jackson were received as testimony, when it should have been excluded. Ilis statements being those of a third person, and not a party to the suit, were simply hearsay, and evidently not admissible. And it was the duty of the judge to disregard them, and, if requested, to declare that they were not admissible. The record does not show that the court paid any attention to these statements, nor that the judge was asked to declare that these statements were not admissible as evidence, and failed to do so, and this court is bound to presume that the decision of the court below was correct, wherever the record fails to clearly and affirmatively show that there was error. Dyer v. Hatch, 1 Ark. 339.

It appearing from the whole record that there is no error of •which the defendant can complain, the judgment of the court below is affirmed.