80 Mo. 56 | Mo. | 1883
The plaintiff sued upon a promissory note made by the defendants, dated May 9th, 1877, and payable in the sum of $359.50 to one John Webb, who assigned the same to plaintiff. It does not appear from the record that any writ of summons was issued in the case. Dermott appeared and pleaded payment. Afterward this plea was withdrawn or superseded by an amended answer m which he denied each and every allegation of the petition. In the same answer he proceeded to state a special defense, which is very long, and may be stated in substance as follows : That on the 9th day of May, 1877, the defendant Dermott and his co-defendant Stringer, conveyed by mortgage a lot m J aspe'r county to J. C. Webb to secure the note held by him; that in July, 1877, the defendants entered into a “ trade ” with one Catharine Sharp, by which they conveyed the Jasper county lot and other property to her m exchange for 160 acres of land m Dade county and other property; that the Dade county land was to be and was conveyed to the defendant Stringer, and that Stringer in consideration thereof assumed the payment of the whole of the mortgage resting on the Jasper county lot, and, for the purpose of indemnifying Mrs. Sharp against the mortgage resting ón the lot conveyed to her, gave her back a mortgage on the Dade county lot received from her; that afterward Stringer conveyed the Dade county lot to one John A. Allen, “who took the same subject to the indemnifying mortgage aforesaid, and with notice thereof; ” that upon threats from Mrs. Sharp that she would foreclose the mortgage on the Dade county lot, said John A. Allen “went to said John C. Webb and paid off the said note in full.”
To this statement the defendant adds the following words, which, pn motion of plaintiff, were stricken out: “ Defendant further says that as to whether the said note was assigned to plaintiff or not, he does not know, but that-
After the motion to strike out had been sustained, the case went on to trial. The defendant offered no evidence and judgment was given for plaintiff against Dermott alone. "Whether the other defendant was served with process or for what reason judgment did not go against him also, does not appear in the record. The defendant saved his exceptions to the action of the court in striking out the words designated by us, and brings the case heré on writ of error.
The court committed no error in sustaining the motion to strike out. It is unnecessary to consider the import of the answer as left after the motion was sustained, or to waste time in comparing the language stricken out with that which remained. This further answer, as it is termed by the pleader, did not as a whole contain any defense to the suit. If the court had stricken out the whole of it, there would have been no error. Therefore there could be no error in striking out any part of it. In this special defense the de
That part of the answer in which the defendant alludes to the existence of the real estate security for the note and prays for an order compelling the plaintiff to resort to such security constitutes no defense. The personal obligation can be enforced irrespective of the security. Thornton v. Pigg, 24 Mo. 249. The case of Wilcox v. Todd, 64 Mo. 388, does not intimate anything to the contrary.