Withers v. Kemper
Montana Supreme Court
A.ppeal from District Court, Silver Bow County J John Lindsay,. Judge. Suit by Mollie Withers against S. V. Kemper aiul others. From a decree in favor of plaintiff, defendants appeal. Testimony concerning loss of papers is immaterial until it is first shown that the paper in controversy was among then..
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A.ppeal from District Court, Silver Bow County J John Lindsay,. Judge. Suit by Mollie Withers against S. V. Kemper aiul others. From a decree in favor of plaintiff, defendants appeal. Testimony concerning loss of papers is immaterial until it is first shown that the paper in controversy was among then.. To ¡Drove the loss of any document it is first necessary to prove its previous existence1. (Jones on Evidence, See 211; Weatherhead v. Baskerville, 11 How. 329; Oliver v. Persons, 76 Am. Dec. 657.) The admission of the answer of the original making of the note is by no means an admission of…
1Opinion of the CourtJustice Milburn
This case is before this court on appeal from the judgment, the appeal from the order denying a new trial having been dismissed.
The plaintiff sued the defendant S. V. Kemper, his wife, and one other, — a grantee of said Kemper, — in foreclosure of a mortgage on certain real estate; the note secured by the mortgage being a negotiable instrument, and having fallen due on May 28, 1891, in this state..
The defendants admit all the allegations of the complaint, except that it is denied that there is anything unpaid on the note; the answer alleging payment of the full sum of the face and interest of…
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