23 Mo. 411 | Mo. | 1856
delivered the opinion of the court.
This was an action in the St. Louis Court of Common Pleas by John B. Arnold against JohnB. King and Thea Maria Palmer, on a promissory note executed by said John B. King and Thea Maria Palmer to Horatio Arnold, for the sum of five hundred and sixty-five dollars and twenty-two cents, payable one day after date, and dated April 3d, 1852 ; which note was assigned on April 29th, 1852, to the plaintiff by said Horatio Arnold. The writ was returnable to the September term of the court in the year 1852; but not being executed, an alias writ was issued returnable to the first Monday in February, 1853. On the return day of the writ, being the first Monday and the 7 th day of February, 1853, the defendant Palmer filed her answer, alleging that the said note was obtained from her by fraud, and through false and fraudulent representations ; also setting up a set-off against the note. This set-off is thus pleaded, viz : “ The said plaintiff owes said defendant for wood sold off said land of hers, occupied by plaintiff during the years 1851-2, the sum of four hundred and seventy dollars. The said plaintiff owes defendant for injuries done to the timber growing on said land, cut by him without her consent
The only matter saved by the defendant below in her bill of exceptions is the ruling of the court on this motion of plaintiff to set aside the judgment by default. We can not take notice of the various motions and dispositions made of them as noted by the clerk; they are not properly parts of the record of thig cause ; and such motions and rulings of the court thereon must be saved by exceptions properly taken, and thus be placed on the record and become parts of it, before this court can notice them. All, therefore, about striking out parts of the answer and striking out the set-off and for a review of the finding must be disregarded by this court. Was the judgment by default in favor of defendant Palmer on the set-off in her answer against the plaintiff properly taken ? The answer was filed on the first day of the term, and the plaintiff was bound to file his replication to the set- off contained in the answer within the next
Here, a defendant has pleaded matters in her answer as a set-off, which in part might have been rejected, as forming no basis of such a plea; but a part of the matters pleaded will properly form the grounds of a set-off. Upon this plea thus containing such matters, a judgment is taken by confession. Then, unless such judgment be properly and for good cause set aside, it was the right of the defendant to have an inquiry by jury to ascertain the amount of the demand set up in such set- off.
In looking through the whole record, we find the case to have been tried in such a manner as to leave it uncertain whether justice has been had or not. Had the court below, after setting aside the judgment on the set-off, allowed the defendant to amend the set-off by filing such a plea as the law would permit, and had afterwards tried the merits of such plea, there could have been no grounds of complaint, although the judgment had been set aside without sufficient cause. In such a case this court would not reverse, although we might be of the opinion that the judgment was improperly set aside. But here there is no pretence to suppose that the matters set up in the plea of set-off have been investigated between these parties in the court below. The plea of set-off was entirely stricken out, although the party once had judgment on the plea in her favor, and that judgment set aside without sufficient reason.
It may be said that the record does not show that the defendant wished to amend her plea; does not show that any exceptions were taken to the action of the court in striking out the plea of set-off. This is so, for a more imperfectly saved record of a trial we have seldom examined. Yet the ruling of the court in setting aside the judgment by default is saved, and we think the court erred in that.
In regard to the finding of the court on the issue of fraud in obtaining the note, we can not see how the defendant can com-.
We shall therefore reverse the judgment of the lower court and remand the cause, with directions to order a writ of inquiry of damages on the judgment by default on the defendant’s set-off, with instructions to the jury of inquiry to ascertain the amount of the defendant’s claim against the plaintiff as set forth in her plea. The judgment by default having admitted her right to the demand, the amount remains to be ascertained by a jury from the evidence to be offered. Judge Scott concurring in reversing the judgment;