47 Mo. 513 | Mo. | 1871
delivered the opinion of the court.
The- defendants had judgment on their answer for want of a reply, and the question here is, was the judgment warranted ? In other words, did the answer contain new matter constituting an affirmative defense ?
The alleged indebtedness sued for was originally contracted by a private corporation, in which each of the defendants held $3,000 of stock. It is on that ground they are sought to be held to personal liability, the corporation in the meanwhile having become insolvent and been dissolved. The defendants in their answer admit the alleged insolvency and dissolution, and their alleged relation to the corporation as stockholders, and then allege a state
Had the failure to reply been the result of accident or mistake, the judgment should doubtless have been set aside, on some reasonable terms, had the court been asked to do so in season — that is, during the term. But here the motion to set aside wTas not made till several terms after the judgment wras rendered, and came too late, and was properly overruled. Some criticism has been made upon the form of the answer averring payment of corporation indebtedness. The allegation is that the defendants paid off corporation debts (in one case a judgment against the corporation directly, and in the other a judgment founded upon corporation indebtedness) to an amount- (specifying the exact amount) exceeding the stock held by the defendants respectively. The point is taken that the “ answer does not say that either of said defendants paid money” in satisfaction of the judgment. The averment of the medium of payment was wholly unnecessary. The answer shows a prima facie defense. If the plaintiffs
The judgment must be affirmed.