This is an action which was brought on a promissory note before a justice of the peace. The cause was removed by appeal to the circuit court where the plaintiff had judgment and defendant Lee appealed.
J fisungEfn’struu-rts: inent; junsd.cI. It is objected that the circuit court was without jurisdiction of the cause for the reason that the •instrument upon which the suit was founded was not filed with the justice be-.¡?ore whom the suit was brought as required by section 6139, Revised Statutes. The justice’s docket recites that plaintiff filed a promissory note for $257.70. That sued on was for $251. The undisputed evidence was to the effect that the latter described note was lodged with the justice before process was issued for defendants. After the suit had been commenced thé plaintiff with the consent of the justice withdrew the note by leaving a' copy. The original was before the justice at the trial and by him delivered to the clerk of the circuit court with the transcript and other papers relating to the appeal. But it was never marked filed by the justice.
The lodgment of the note with the justice though not marked filed by him was a sufficient filing within the meaning of the statute. State v. Hocker, 68 Mo. App. 415; Collins v. Kammann, 55 Mo. App. *565loc. cit. 466; Olin v. Zeigler, 46 Mo. App. 193; Grubbs v. Cones, 57 Mo. 83; Anderson’s Law Dict.
The note was lodged with the justice before the process was issued thereon and this was a sufficient filing to confer jurisdiction over the subject-matter, and the mere temporary withdrawal of it by the plaintiff did not have the effect to deprive the justice of the jurisdiction which had previously attached. The slight inaccuracy in the description of the note by the justice in his docket is of no importance. If the note was in fact filed by him before he issued process the jurisdiction thereby acquired was not lost by such a misprision. We think the circuit court acquired jurisdiction of the cause by the appeal.
nonmercantue PJftohisps:ue II. The defendant further objects that the court erred in its action giving the plaintiff’s instructions, the first of which told the jury that “if they believe irom the evidence that the defendant, H. W. Randall, borrowed the money, and used it for the benefit of the partnership, he had a right, as a member of the firm, to execute the note of the partnership for the same without special authority from defendant, J. H. Lee, to do so during the existence of the partnership.”
The defendants were partners engaged in the photo-engraving and printing business. There is nothing in the evidence tending to show that they were a trading partnership. Deardorf v. Thacher, 78 Mo. 128, decides that a partner of- a nontrading partnership can not bind his copartner by bill or note drawn, accepted, or indorsed by him in the name of the partnership, not even for a debt which the partnership owes or for articles or labor necessary in the business of the partnership unless he has express authority therefor from his copartner or unless the giving of such instruments is necessary to carrying on the firm business, or is usual *566in similar partnerships, and the burden is in the holder of the instrument sued to prove such authority, necessity, or usage. •
It is true in the dissenting opinion delivered in the case by Judge Henry it was said: “I concur in reversing the judgment but do not concur in so much ©f the opinion as holds that one member of a copartnership, not a trading or mercantile copartnership can not bind the firm by a note executed in the name of the firm for articles or labor necessary in the business of the firm.” The rule thus favored by Judge Henry in his dissenting opinion may be more salutary than that declared by the majority of the court, yet we have felt constrained to follow the latter. Webb v. Allington, 27 Mo. App. 559; Feurt v. Brown, 23 Mo. App. 332. In the light of the decision in the majority opinion in Deardorf v. Thacker, supra, the rule asserted in the plaintiff’s first instruction, as well as in the other two which are of similar import, must be held erroneous.
'It seems that unless the plaintiff can show that the defendants were a mercantile or trading copartnership at the time the note was given, or that the defendant Randall was expressly authorized by the other defendant, his copartner, to sign the firm name to the note, that the plaintiff’s action therein must fail. The defendant’s seventh instruction to this effect, that Randall could not bind Lee, his partner, by a note executed by said Randall in the partnership name of Lee & Randall, unless said Lee previously authorized said Randall to sign said note, or unless said Lee subsequently assented to the signing of said note in said firm name, or unless it was a general custom of said partners to sign the firm name to negotiable instruments; and the jury are further instructed that the burden is upon the plaintiff in this case to show by a preponderance of credible testimony such authority, *567assent, or custom, correctly expressed the law and • should have been given.
Defendant has in his brief urged upon our consideration a great number of other objections to rulings made by the court during the progress of the trial, but these we have examined and find destitute of merit. The judgment will be reversed and cause remanded.
All concur.