Aylor v. McMunigal

Gill, J. The plaintiff sued the defendant and recovered judgment on a lost bill of exchange. The indemnifying bond, provided for in section 2185, Revised Statutes, 1889, was not given until after the verdict was rendered and judgment entered; but said bond was given, and approved by the court, a few [659] days thereafter, and before the motion for new trial (which first called attention to the matter)was passed on and overruled. This failure of the plaintiff to furnish said bond before a judgment was rendered constitutes defendant’s principal reason for asking a reversal. It was formerly held that an action in a court of law could not be maintained on a lost negotiable instrument. The suitor, in seeking relief, was compelled to go into equity, where the court would, under its comprehensive powers, require the plaintiff, by sufficient bond or security, to protect the defendant from being subsequently charged by another party. To remedy this, the statute, as now found in sections 2184 and 2185, was adopted. In the last section, it is provided that “to entitle a party to such recovery, he, or some responsible person for him, shall execute a bond to the adverse party, in a penalty at least double the amount •of such note or bill, with two sufficient securities, to be approved by the court in which the trial shall be had, conditioned to indemnify the adverse party,” etc. The purpose of this bond is manifest. The law meant to allow plaintiff a judgment against the maker of the note or bill, on the condition that the plaintiff would give the required bond to protect the defendant from any claim thereafter made by one who might have come into possession of the instrument. And is it not clear, now, that this defendant was so protected by the bond executed by the plaintiff? There is no question made as to its validity, or sufficiency, in form •or substance; the only objection being that it was not executed and filed before the judgment. Said bond was, however, executed, approved, and filed before the final disposition of the cause, while the motion for new trial was pending and while the judgment was yet in [660] the grasp of the court; and in our opinion this was sufficient. None of the eases cited by the defendant’s counsel involve the conditions of things we have here. The nearest approach to it is that of Sauter v. Leveridge, 103 Mo. 615. In that case the indemnity bond was filed with the court, after the close of the evidence, and a demurrer thereto had been overruled. This was held sufficient. In other cases cited by defendant’s counsel no bond was filed at all. Hendricks v. Whitecotton, 60 Mo. App. 671; Barrows v. Million, 43 Mo. App. 79; while in Eans v. Exchange Bank, 79 Mo. 182, it was decided that a petition on a lost note was not demurrablebecause it was not alleged therein that an indemnity bond had been given. This disposes of the only substantial question raised on this appeal. There is no merit in any other point suggested. The judgment was clearly for the right party and will be affirmed. All concur.