Julian v. Rogers

Sherwood, J. Action on what is termed an appeal bond given by Seligman, in his lifetime, and Cassill, one of the present defendants. This bond was given in the case of Bray v. Seligman, 75 Mo. 31. Seligman, the defendant in that case, as well as Bray, the plaintiff therein, died while the appeal taken by Seligman was pending in this court, said appeal being taken from an order of th [232] Jasper circuit court, based ou a motion awarding execution against Seligman, as one of th® stockholders in the Memphis, Chattanooga & Northwestern Railroad Company. Plaintiff recovered judgment on the bond, and the defendants have appealed. I; There was error in admitting the bond sued on in evidence over the objections of the defendant Rogers, that its execution had not been proven. While section 3653, Revised Statutes, provides that when the action is founded, on an instrument in writing, executed by the 'oilier party, etc., its execution “shall be adjudged confessed unless the party charged to have executed the samé deny the execu! ion thereof by answer, etc., verified by affidavit,” yet the next section, 3654, construing the section already quoted, in express terms provides: “ The preceding section shall not be construed to authorize any instrument of writing to be received in evidence without proof of its execution, in any suit against an executor or administrator, or any other person representing the person charged to have executed such instrument, nor any county, city or town, sued upon any instrument alleged to have'been executed by such county, city or town, or any corporate authorities.” It is clear, beyond question, that section 3653 applies to suits on instruments in writing against lining men ; but that section 3654 applies only to suits against an ad-' ministrator or executor, etc., of the person charged to have executed the same. It seems very singular that counsel for plaintiff, while calling attention of this court' to section 3653, where the person charged to have executed the instrument is lining and a party to the suit, should have failed to cast his eye on the next section, 3654, on the same page, relating to suits against administrators, etc., of the person charged to have executed an instrument. The case of State v. Chamberlin, 54 Mo. 338, relates exclusively to cases provided for in section [233] 3653, supra, and is couched in language not readily mis understood. II: There was error in rendering judgment on the instrument sued on, for the reason that it had none of the elements of legal validity about it, being taken and approved by the clerk in vacation. The following authorities fully sustain this position: Adams v. Wilson, 10 Mo. 341; Cookrill v. Owen, 10 Mo. 287; Filley v. Patterson, 4 Mo. 271; Parker v. H. & St. J. R. R. Co., 44 Mo. 415; Stavely v. Kunkel, 27 Mo. 422; Long v. Dismer, 72 Mo. 655; O'Reilly v. Edringtón, 96 U. S. 724; Garnet v. Rogers, 52 Mo. 145; Barnett v. Lynch, 3 Mo. 369. For these reasons the judgment will be reversed, and as it is apparent that plaintiff has no ground for recovery, the cause will not be remanded. All conoux.