Brown v. Shock

27 Mo. App. 351 | Mo. Ct. App. | 1887

Hall, J.

The note declared on, being payable on a day certain, was entitled to three days of grace. Turk v. Stahl, 53 Mo. 437; McCoy v. Farmer, 65 Mo. 244. Under our statute the filing of the petition was the commencement of the action. Rev. Stat., sect. 3485; Gosline v. Thompson et al., 61 Mo. 471; Dougherty v. Downey, 1 Mo. 675. This suit was begun, then, on March 1, 1886. Under any possible view of the law, the suit must be deemed to have been begun on March 2, 1886, on which day the writ of summons was issued, and service was had on one of the defendants. The note was, therefore, not due at the commencement of the action. The action was prematurely brought.

An action cannot be maintained on a debt not due at the commencement of the action. Mason v. Barnard et al., 36 Mo. 391; Cheatham v. Lewis, 3 Johns. 43; Turk v. Stahl, 53 Mo. 438. The case of Musgrove v. Mott (90 Mo. 111), cited by the plaintiffs in error, rests upon the statute concerning attachments, which allows suits, by attachment, in certain cases, upon demands not yet due.

The plaintiff must state in his petition a cause of action, anterior to the commencement of his suit. The petition, in this case, alleged facts which showed that the note declared on was, in law, not due at the commencement of the suit. Not only did the petition fail to state a cause of action, but it, by express averments, stated facts showing that the plaintiff had no cause of. action at the commencement of the suit. There was, to be sure, an averment in the petition, that the note was due and unpaid. But the averment that the note was due, taken in connection with all the other allegations of the petition, must be considered as the statement of a conclusion of law, rather than of a fact. The facts alleged showed that the note was not due, and that the conclusion of law stated was erroneous.

The objection, that the petition fails to state facts sufficient to constitute a cause of action, is never waived. Such defect in the petition is not cured by the verdict or judgment. Staley Furnishing Co. v. Wallace, 21 Mo. App. 131; State ex rel. v. Griffith, 63 Mo. 548; State to use v. Bacon, 24 Mo. App. 403.

As the petition shows affirmatively that the plaintiff had no cause of action, at the commencement of the suit, there is no reason for remanding the cause. The judgment of the circuit court is, therefore, reversed and the petition dismissed.

Ellison, J., concurs; Philips, P. J., concurs in the result.