White & Cross v. Collier, 5 Mo. 82

Tompkins, Judge, delivered the opinion of the court. Collier commenced his action by petition in debt, under the act of the 14th March, 1835, against Whitéand Cross, stating that he was the legal owner of a bill obligatory, made by the defendants to James P. Fulkerson, and assigned by Fulkerson to him. The defendants pleaded non est factum, without an affidavit, and that Fulkerson did not assign; and issues being joined, a verdict was found on each issue for the plaintiff, and judgment was accordingly entered up.

The defendants moved for anew trial, for reasons filed; and their motion being overruled, they prosecute their appeal to reverse the judgment of the circuit court. The reasons assigned for a new trial are: 1. That the defendants were taken by surprise. 2. That the defendant, White, had a claim against Fulkerson, the assignor of Collier, which he could have established had he known the cause would have been tried at the return term of the writ.

White, one of the defendants, also filed his affidavit, stating that Fulkerson, the assignor, was indebted to him for goods sold, &c., to the amount of one hundred and seven dollars and some cents, the most of which debt accrued, as he believed, before the assignment of the bill to Collier; that the bill or instrument sued on, and the assignment, was not filed along with the petition in the clerk’s office, as is required by law — see third

section of the act above referred to; that he had employed counsel, generally, to attend to his business in court, but not go into a detail of his defence, under the impression that the cause would not be tried at the return term; that the affiant had been sick, and could not with safety and propriety turn'out until the morning after the judgment was rendered; and that nothing but necessity could have induced him to do so; that he knew nothing of the law under which he was sued, and was not aware until the morning, when judgment was rendered, that judgment could be obtained against him at the return term of the writ.

The circuit court overruled the motion for a new trial, and this is assigned for error. mons. Plea, non est factum, &c. defc'and'motion1 for a new trial, on .gr°tu"d *hat sue^onwwTñot filed in the clerk’s office along with Petition andsum-the petition. Held, that the ob-jectión, if any, could only be ta-iithe court below by motion to miss, or it might cause fo" confín-uance, but that deft, waived such pleading1 &c. ’ ' Ignorance of the law is no excuse compiywrith its provisions. By the third

section of the act, under which this suit was commenced, it is provided, that the petition, together with the instrument' sued on, and the assignments, shall filed in the clerk’s office, and a writ of summons or capias may be sued out, &c. This court never yet has decided what would be the consequence of a failure to instrument of writing sued on at the same time with the petition. It might, perhaps, be decided to be cause either for dismissing the plaintiffs’ action or fora continuance. Here there has been no action of the circuit court on the matter.

Had the defendants moved the circuit court, either to dismiss the cause or continue ^’*ts decision on the matter would have furnished a point which this court could have decided. But the defendants by pleading to the action, waive all objections to lime °f filing the instrument of writing sued on, and claim a new trial, because of surprise. But suppose the failure to file the bill sued on were good cause for new tried, no evidence of the time of filing it is preserved on the recórd, and such being the case, this court must presume that the circuit court saw that it was filed in time.

There is then no other reason left for a new trial than the defendant’s alleged ignorance of the law. If he was ignorant °f the law, he must abide the consequences of such ignorance. The law has been published long enough for him to be informed of it. Ignorance of the law is no excuse. He had employed caunsel, and because he did not know the cause would be tried at the return term, he had failed to inform his counsel of the particulars of his defence.

His counsel, however, knew well that they were required to go to trial at the first term,, and accordingly pleaded; and under neither of the pleas, by them pleaded, could the demand of the defendants be given in evidence. With this view of the case it would be hard to imagine any cause for a new trial that would be deemed good.

But the defendants wish a new trial, in order that they may have allowed to them a set-off for a sum of money about one ninth part of the judgment against them, and this too a debt, contractedby the assignor of the bill sued on, probably since the making of said bill, and for which debt they might have had their action. A court could hardly, under any circumstances, grant a new trial to let in such a demand; but in the bill here sued on it is expressed that the sum therein specified shall be paid without defalcation; and by the fourth

section of the act concerning bonds and notes, passed 4th February, 1835, see Digest, page 105, the defendants are not allowed any set-off or discount against the assignee where the bond or note is made payable without defalcation or discount. For the reasons above given, the circuit court, as it appears to me, has committed no error in refusing a new trial, and its judgment ought tobe affirmed; and the other two Judges concurring in this opinion, it is affirmed.