| Mo. Ct. App. | Jan 30, 1900
On August 17, 1896, Charles Eahmer as principal and Henry Lucksinger as surety, executed and delivered to plaintiff their promissory note for $500, due two years after date with interest. On August 22, 1898, Luck-singer served a written notice on plaintiff to bring suit on the note. On September 19, 1898, suit was brought by plaintiff on the note returnable to the November term, 1898, of the circuit court, to be held at Montgomery City (parties all being residents of Montgomery county). The note was not filed with the petition when suit was brought, and on November 16, 1898, defendant Lucksinger, filed his motion to dismiss the suit because the note was not filed with the petition. Leave was taken to file the note, and the motion was-overruled,
The answer of Lucksinger set up several defenses, but the only one relied on at the trial was that respondent did not use due diligence to prosecute his suit, after being notified by appellant to sue on the note, and he assigns as error on this appeal, that the court erred in not sustaining this defense. His contention is, that under the law there being two places, to wit, Danville and Montgomery City, at each of which two terms per annum of the Montgomery circuit court is held— one at Danville the first Monday in November, and one at Montgomery City the second Monday in November — the respondent to have exercised due diligence was bound- to have-commenced his suit at Danville and sue out summons returnable on the first Monday in November, instead of beginning his suit at Montgomery City and making it returnable on the-second Monday, as he did do. The section of -which appellant undertook to avail himself by giving notice to sue (sec. 8344,. E. S. 1889), enacts: “If such suit is not commenced within-, thirty days after the service of such notice and proceeded in. with due diligence, in the ordinary course o-f law * * *" such surety shall be exonerated from liability to the person so notified.” The suit was begun within thirty days after the service of notice to sue. Was the respondent guilty -of 'such laches as will discharge the appellant, because by bringing his suit -at Montgomery City the summons was returnable one week later than it would have been had he commenced his suit at Danville? We think not. To so hold, in the absence of any testimony whatever that -appellant was in the least preju
Appellant contends further that as the note was not filed with the petition, the suit was not commenced until after his notice to dismiss was overruled and the note was actually filed. The suit was commenced by the filing of the petition; the note formed no part of the petition. It, when filed, is but an exhibit which the statute requires to be filed with the petition. There is no merit in this contention.
The judgment is affirmed.