Levy v. Hawley

8 Mo. 510

• Court: Supreme Court of Missouri
• Decided: January 15, 1844
• Status: Published

Opinion

Naeton, J.,

delivered the opinion of the Court.

Hawley sued Levy, John and James A- Edgar, before a justice of the peace, on the following note : — “ Six months after date, we promise to pay Stephen Hawley, or order, one hundred and fifty dollars, for value received, bearing ten per cent, interest per annum until paid. — 18th May, 1841.”

(Signed) “J. & J. A. Edgar & Co.”

Levy and James Edgar were served witl^ process, but John Edgar was returned non est inventus. A trial was had before the justice, and the plaintiff obtained a judgment, from which Levy appealed to the Circuit Court, and the other defendants not joining in th§ appeal, there was an order of severance. The case was submitted to the court, and the court found for the plaintiff, an'd gave judgment against Levy for the amount of the note with interest.

On the trial in the Circuit Court, James Edgar, against whom the judgment had gone before the justice, was produced as a witness for the plaintiff. Objections were made, the objections overruled, and exceptions taken to the opinion of the court.

All the evidence is spread upon the record by a bill of exceptions; but as we Ihink the court erred in admitting Edgar to testify, it is unnecessery to give any opinion in relation to the verdict.

The witness was directly interested in the event of the suit; for by procuring a judgment against the defendant, he thereby diminished his own liability. He was, in that event, entitled to contribution. — Morrell vs. Jones, 7 Bingh., 395.

The provisions of our statute, (Rev. Code, 361,) allowing a party, in certain cases, before justice of the peace, to subpoena his adversary, and in the event of his not appearing to testify himself, do not embrace a case like this. It was. not the design of the statute to suffer one defendant to prejudice, by his oath or his disobedience to a subpoena, the right of a co-defendant.

Judgment reversed, and cause remanded.