48 Mo. 319 | Mo. | 1871
delivered the opinion of the court.
The petition charges that the plaintiff, in 1860, recovered a judgment against James Craig, deceased, for some $20,000;' that without consideration, and to defraud plaintiff, the said Craig in his lifetime conveyed his real estate to certain of the defendants; that in 1867 he died, and one of the defendants,' Norman J. Bliss, is his administrator; and prays that the property may be sold and the proceeds applied to the payment of the plaintiff’s said judgment. The defendants jointly demur to the petition and specify the grounds of demurrer, to-wit; 1st, because the petition does not allege facts showing a lien or title in the plaintiff to the real estate covered by the conveyance; 2d, Craig having died before execution and after the expiration of the judgment lien, the plaintiff has no equity; 3d, the administrator of Craig is not a proper party. The demurrer was sustained by the Circuit Court, and judgment was entered upon it. I have given the grounds of the demurrer because, although the petition seems tobe defective, it is not so, for the reasons named, and the court committed error in sustaining the demurrer. The statute is imperative that “ the demurrer shall distinctly specify the grounds of objection to the pleadings” (Wagn. Stat. 1015; Gen. Stat. 1865, ch. 165, § 7), and, when they are s.o specified, the court will not fake notice of other defects, especially when the pleading can probably be amended so as to make a case or avoid the defect. (Cheely’s Adm’r v. Wells, 33 Mo. 106; Loomis v. Tifft, 16 Barb. 541. ) The first and second grounds of objection are substantially the same, and the pleader seems to suppose that there must be a specific judgment lien in order to sustain a creditor’s bill. Judges have sometimes so remarked, but the subject was considered by us in Glenny v. Freeman, 44 Mo. 518, and it was Held that
The judgment will be reversed and the cause remanded, that the plaintiff, if he desires, may amend his petition.