State ex rel. Bredell v. Baldwin

Dryden, Judge, delivered the opinion of the court. The error complained of is the refusal of the common pleas to instruct the jury as asked by appellants. This case was here at the March term, 1858, (see 27 Mo. 103,) when it was decided, properly, as we think, that the final settlement of Baldwin, and the order of distribution made by the probate court, did not conclude the plaintiff, as the common pleas was by the first instructions asked to declare. The settlement was competent evidence against Baldwin, as an admission by him of assets in his hands. (1 Green Ev., p. 657, § 527 A.) Eor this purpose alone it was introduced, and for this it was sufficient and proper. As to the order of distribution, coupled with the order receiving and approving the final settlement, it can not legally have the force against the plaintiff which we are asked to give it, because it was made ex parte, in the absence of the plaintiff and without any sort of notice. He is, therefore, in nowise bound by it. -We are likewise of the opinion the common pleas committed no error in refusing the second instruction. This instruction asks the court to say the record, in the case of Baldwin, survivor, v. Bredell, is no evidence of the indebtedness of Bredell & Baldwin. Upon what principle Baldwin can [566] claim this record is no evidence against him of the indebtedness of the firm, we are at a loss to see. Wheil we look into the record, we find it a suit in a court of competent jurisdiction between the same parties as here, (so far as he is concerned,) in which the same matter precisely is in issue as here, viz., the indebtment of the firm to John C. Bredell, and in which the matter in issue is finally passed upon and determined by the referee and the court. Upon well'settled principles, the record was not only evidence against Baldwin of the indebtedness of the firm to the deceased partner, but was conclusive apon the point. (1 Starkie’s Ev. 318.) We do not feel that we are called upon to determine what force- this record has as evidence against the other defendants, the securities of Baldwin; yet we apprehend that, upon an examination of the authorities, it will be found the instruction demanded too much in asking the court to say the record was no evidence, even as against the securities. However this may be, the instruction was properly overruled. The other judges concurring, let the judgment be affirmed.