Munn v. Greenwood

Headnote

Facts and circumstances upon which defendant was denied a motion for judgment as in case of non-suit, or that plaintiff pay his taxable costs, on the ground that the suit had heen settled.

Motion for judgment as in case of non-suit, or that plaintiff pay defendants’ taxable costs in this cause.—Defendants’ facts: Suit commenced about 6th July, 1843; issue of fact joined 21st July, 1843. Plaintiff did not notice the cause for the circuit, on the 1st Monday of August, 1844; that issues of a later date than 21st July 1843, were tried at said circuit. This suit is on a promissory note, signed by both defendants : the same is now pending, and in no way settled, arranged, or compromised. No costs have ever been paid defendants in this suit. Greenwood, one of said defendants, confessed a judgment to one Smyth, on the 8th,of June, 1843 : the amount of the above mentioned note was then ascertained, and included in said judgment for plaintiff’s benefit, and by consent of said Greenwood; and said plaintiff Smyth at same time executed and delivered to said plaintiff a writing, acknowledging plaintiff to be owner of so much of said judgment as was due him on said note, to which plaintiff assented. On the 25th August 1843, one Medbury paid for said Greenwood the whole amount due on said judgment. At that time, plaintiff and his attorney presented said note, on which this suit is brought, and on which said judgment was confessed, to said Greenwood for payment. The amount due plaintiff on said note was then cast up, and the same paid to said plaintiff by said Medbury, for said Greenwood, who was owing said Greenwood, and the note given up to said Greenwood by ' said plaintiff, who expressed himself satisfied : there was no settlement • or arrangement of this suit at that time, in any way other than above stated. Defendants’ attorney has never received any notice discontinuing this suit: should have moved before, but for the inability of procuring said Greenwood’s affidavit, who resides at Wisconsin, and which is now procured. Five different individuals swear in substance to the same facts .as above set forth in regard to the settlement of this suit. Plaintiff’s

facts : Some time after the note became due, Williams, who was surety, gave plaintiff notice he must collect said note immediately; or he, said Williams, should not hold himself responsible for its payment. Plaintiff then employed his attorney to collect said note, who called on said defendant Greenwood for payment. Afterwards Greenwood confessed the judgment before mentioned, including the amount of said note; and plaintiff took the writing from said Smyth before mentioned, and, after consulting counsel, found said Smyth would not be liable to pay him his amount of said judgment by said writing, unless the same was collected of Greenwood. Plaintiff then directed the prosecution of this suit, and the writing was given back to said Smyth. After suit was commenced, Greenwood came to plaintiff and said he wanted to settle the suit, [33 he did not want any more costs made about it, and wanted to get rid of it; that he honestly owed the money due on the note, and had made arrangements with one Medbury to pay it and stop any further proceedings in the suit. Plaintiff received the money from said Medbury for the amount due on the note, and gave up the note to said Greenwood as before stated; and plaintiff observed that it is all settled now, and nothing more to be done about it; to which Greenwood replied, it was. Plaintiff considered the suit settled : he had not agreed to pay defendant’s costs, and there was nothing said about costs either way. Plaintiff’s attorney corroborates the same state of facts, and, in addition, says Greenwood expressly admitted that said suit was settled.