Dailey v. Sharkey

Rohbauee, J., delivered the opinion of the court. This is an action upon a promissory note for three hundred dollars, by the holder against the endorser. The execution of the note and endorsement are admitted. Two defences are interposed, want of presentment for payment and notice of dishonor, and a former recovery. Upon the trial of the cause before the court without a jury, there was judgment for plaintiff. The defendant, appealing, assigns for errors that there was a failure of proof, and that the court erred in not sustaining his plea of former recovery. The first exception arises under the following facts : [520] The note sued ou was payable, by its terms, at the Mullauphy Bank, and there was testimony tending to show that payment was demanded there at maturity and refused, of which fact the defendant was notified. The petition states that personal demand was made of the maker, and when the plaintiff offered to prove a demand at the bank, the defendant objected on the ground of a variance between the allegation and proof. Proof of demand at the bank was sufficient to hold the endorser, and was, as to him, the only proper demand. Townsend v. Dry Goods Co., 85 Mo. 503. Even if there had been a substantial variance, on which question we express no opinion, the matter is not properly before us for review. Rev. Stat., sec. 3565, 3566; Ferris v. Thaw, 5 Mo. App. 279; s. c., 72 Mo. 446; Knapp, Stout & Co. v. Joy, 9 Mo. App. 575. This exception, therefore, is not well taken. The plea of former recovery is technically not well pleaded. It fails to state, in express terms, that the justice rendering the judgment had jurisdiction of the subject-matter. State to use v. Brooke, — Mo. App. —. It does state the true facts, leaving the court to determine the question of jurisdiction, which is all that the pleader could truthfully do. The proof offered to substantiate the plea was properly ruled out, because it affirmatively appears by such proof that the justice had no jurisdiction of the subject-matter. Rev. Stat., sec. 2836; Deshon v. Leffler, 7 Mo. App. 595. The justice’s judgment was not erroneous, but absolutely void, and, therefore, subject to collateral attack, and in fact a nullity. Fithian v. Monks, 43 Mo. 520, and cases cited. The note could not merge in a judgment which never had any legal existence. It results that the second exception is equally untenable. All the judges concurring, the judgment is affirmed.