75 Mo. 31 | Mo. | 1881
I.
This case, in its essential features, is like Griswold's case, 72 Mo. 110, and Fisher's case, ante, p. 13. This point of difference is, however, presented by this record: Two executions were issued against the corporation, one to Lawrence county, the other to Jasper county, the former returned nulla bona; the latter levied on certain property, consisting chiefly of the road-bed of the corporation — the residue being lots in North Carthage. Defendant filed his answer, wherein he set forth certain grounds and réasons •why recovery should not be had against him, but made no issue as to the insolvency of the corporation. At the trial such insolvency was tacitly conceded. This being the case, it is quite too late to raise an objection on this score now. As numerous decisions of' this court attest, a party will not be allowed to try his cause on one theory in the trial court, and then, if beaten there on ground of his own choosing, spring a fresh theory on his adversary in this court. Besides, the motion, for execution alleged the insolvency of the corporation. The defendant answered the motion by filing a formal answer thereto. This it seems he need not have done under the provisions of section 13, page 291, 1 Wagner’s Statutes; but having elected' thus to do, and having failed to deny the insolvency of the corporation, that fact must be deemed as much admitted as though a. formal pleading were requisite.
H.
The declarations of law asked by plaintiff, were in full conformity with our views as heretofore expressed in the cases already cited. And we regard as unsound the position assumed in defendant’s second declaration of law, to