4 Mo. 267 | Mo. | 1836
delivered the opinion of the court.
This was a suit by petition and summons in debt, instituted in the Howard circuit court, by James Harrison and William Glasgow, against the plaintiff in error and one John R. White, on a promissory note made by Dempsey and White, payable to James Harrison & Co.—for $7877,89. The petition-was filed on the 18th of June 1835, and the writ made returnable on the second Monday in July. The process was served on Dempsey, and return made, “White not found.” — At the July term, Dempsey pleaded: 1st. Nel debit; 2nd. Payment by both defendants ; 3rd. Payment by White, and 4th. Set off of money due from the plaintiffs to both defendants. On the same day the plaintiffs replied to the 1st, 2nd, and 3rd, pleas, takng issue thereon, and demurred to the 4th plea. The cause was then continued on the affidavit of Dempsey to the next term. At the November term, and on the first day of the term, the plaintiffs in error (without
From the bill of exceptions in the cause, it is seen that on the trial the counsel for the plaintiffs read in evidence a note executed to James Harrison & Co.— to the reading of which, the defendant by his counsel excepted; because it was not shewn who composed the firm of James Harrison & Co. The court overruled the objection and permitted the note to be read; to which the defendant excepted.
The defendant also moved for a new trial for the following-reasons: 1st. Because the finding is against the evidence — 2nd. Because there was no evidence to prove that James Harrison and William Glasgow, were all the partners, of the firm of James Harrison & Co. — 3rd. Because there was no evidence offered to the court that William Glasgow is a partner, of the firm of James Harrison & Co.—4th. Because the said defendant’s bill for a discovery was improperly rejected by the court — and 5th. Because the defendant was irnpi-operiy refused further time to join issue on the replication of the plaintiffs to the 4th plea of the defendant.-
This motion for a new trial was overruled, and the judgment of the court in overruling the motion and refusing the new trial excepted to.
It is assigned for error — 1st. That the circuit court refused to permit Dempsey to file his bill of discovery— 2nd. That the court gave judgment by default against the plaintiff in error, for want of a rejoinder to the replication of the defendant in error, to his fourth plea — 3rd. That the court proceeded to the trial of the cause on the same
The counsel for the defendants in error, contends, that the petition was in this case properly rejected — 1st. Re-cause it was offered too late — and 2nd. Because the plaintiff in error had no equitable right to the discovery sought. The statute provides (Revised Statute p. 462— Sec. 10 ) “That either party to a suit in any court of record shall be entitled to a discovery from the other party of all matters material to the issue in such suit, in ah cases where the same party would by the rules of equity, be entitled to the same discovery in a court of equity, in aid of such suit, — upon presenting a petition verified by the affidavit of the petitioner or some other credible person” &c. At the July term of the court, the petitioner applied for and obtained a continuance of the cause on account of the absence of a witness, by whom he ex-pecied to prove (as he states in his affidavit for a continuance) the facts set out in his petition for a discover)*.— The witness whose deposition was taken in the vacation, failed to establish the fact*. Whilst the plaintiff in error had reason to believe that he could establish the facts by the testimony of a witness, he could have no right to call on the defendants in error, to disclose them under oath. We cannot readily perceive how, in this case, the plaintiff in error could have come earlier with his petition.— The information sought for is to be obtained, as the petitioner states, from tire defendants m error and from no one else. So that unles they are put to answer he will be without remedy. We think threfore, that the circuit [court] erred in rejecting the petition.
As to the 2nd error assigned, seem, plamtiffin error, sought by withholding his rejoinder to the plaintiffs replication to his 4th plea, to put off the al of the cause. Under the circumstances of the case, he was entitled to a continuance. The demurrer
The finding of fhe court sitting as a jury, should have been set aside and a new trial granted. Upon the whole matter therefore, the judgment of the circuit court is reversed and the cause remanded for a new trial, and that ' court is directed to permit the defendant in that court to file his bill of discovery.