Garth v. Motter

Mar 12, 1913
Reporters:
, ,
Before:
Faris
FARIS, J.-

*479Note. *478This is- an action at law, for the balance, with interest, due on a promissory note, for the *479original sum of $4500, bearing interest from matnrity at the rate of ten per cent per annum. The note was dated June 11, 1875, and fell due one year after date. It-was made by- defendant Joshua Motter and others, whose names are not here pertinent, to the father of plaintiff, who sues as sole heir, after administration had.

Payments. The petition was filed on the 17th day of April, 1909, in the circuit court of Buchanan county. This petition on its face showed a payment made ^ 0f £2635.47 on the 9th day of December, 1876; alleged ‍​‌‌​‌‌‌​​​​‌​​‌‌​‌‌​​​​​​‌‌‌‌‌​​​‌​​​​​​‌‌‌​‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‌​​‌‌‌‌​​​‍that no other payments had been made thereon, and prayed judgment for the balance of $1864.53, together with interest at the rate of ten per cent per annum from December 9, 1876. The petition disclosed no facts, and made no allegations, tolling the Statute of Limitations. Applying the rule expressed by the maxim — cerium est quod certum reddi potest — we find’ the amount alleged by the petition to be due at the time of filing suit, to have been about $10,745.

Demurrer Writ of error. The defendant appeared in the circuit court .and filed a demurrer to the petition, which demurrer be-sustained, the plaintiff refused to further plead and final judgment was rendered against her below thereon on‘May 8, 1909. Thereupon, on the 20th day of July, 1909, plaintiff sued out, in the Kansas City Court of Appeals, a writ of error, returnable to said court on the first Monday in October, 1909, and thereon the circuit court of Buchanan county actually made return July 21, 1909. Attempting to comply with the requirements of section 2071, Revised Statutes 1909, plaintiff in error on the 20th day of September, 1909, served on the defendant in error the following notice:

*480Alice K. Garth, Plaintiff in Error, v. 9063.’
Joshua Motter, Defendant in Error.
Joshua Motter, Defendant in Error, or Motter & Shultz, his. attorneys of record: You are hereby notified that the writ of error from ‍​‌‌​‌‌‌​​​​‌​​‌‌​‌‌​​​​​​‌‌‌‌‌​​​‌​​​​​​‌‌‌​‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‌​​‌‌‌‌​​​‍the Kansas City Court of Appeals will be presented to and heard by that court in Kansas City, Missouri, on Monday, October 11th, 1909.
Served Sept. 20, 1909.
Ben J. Woodson,
Atty. for Plaintiff in Error.

On September 25, 1909, the defendant in error filed a motion in the Kansas City Court of Appeals to dismiss the writ of error herein, on the ground that no timely notice as required by law had been given. He also, by a brief filed in said court, and refiled in this court, urged a dismissal for lack of such notice. By stipulation of counsel the’ case was submitted on briefs in the said court of appeals. The case coming on for hearing in said court on the motion filed on the merits, that court, deeming itself without authority to hear and determine the same, because the amount involved exceeded its jurisdiction, on the 4th day of November, 1909, ordered it certified to this court for determination, which was accordingly done, and the case is here.

Notice There are but two points raised in the case; one of these is raised by the plaintiff in error, and the other by the defendant in error. The point of the plaintiff in error is: Did the trial court err in sustaining the demurrer to plaintiff’s petition, it appearing (and for the reason) that said petition showed upon its ‍​‌‌​‌‌‌​​​​‌​​‌‌​‌‌​​​​​​‌‌‌‌‌​​​‌​​​​​​‌‌‌​‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‌​​‌‌‌‌​​​‍face that the cause of action stated therein, or attempted so to be, was barred by the Statute of LimiNations? The question raised by the defendant in error is: Was timely statutory notice given of the suing out of the writ of error herein; if not, should the writ be dismissed for lack of statutory notice!

*481We must needs look first to the last question, meeting it as we do upon the threshold.

The statute involved and relied upon is as follows :

“Sec. 2071. Every person suing out a writ of error shall cause notice thereof in writing to be served ■ on the adverse party or his attorney of record, twenty days before the return day of such writ. If such notice be not served, the writ shall be dismissed, unless good cause for such failure be shown. ’ ’

Judicial Notice. As we have already noted in the statement of facts, the writ of error was returnable on the first Monday in October, 1909. Return thereof was promptly and timely made — in fact the return bears attest of the circuit clerk on July 21, 1909, and the filing shown to have been had on July 22, 1909, in the •said court of appeals. The notice actually given by plaintiff in error was served on September 20, 1909, and it advised and notified defendant in error that “the writ ‍​‌‌​‌‌‌​​​​‌​​‌‌​‌‌​​​​​​‌‌‌‌‌​​​‌​​​​​​‌‌‌​‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‌​​‌‌‌‌​​​‍of error from the Kansas City Court of Appeals will be presented to and heard by that court in Kansas City, Missouri, on Monday, October 11, 1909.” Here was, of course, more than twenty days’ notice prior to “presentation and hearing” of the writ of error, but not the twenty days’ notice required by statute before the return day of said writ. For we judicially notice that the 11th day of October cannot fall upon the first Monday in October, the date fixed by the writ itself for the return thereof. [Jordan v. Railroad, 92 Mo. App. 84.] The writ also was by its terms required to be returned to the October term of the Kansas City Court of Appeals. We judicially notice the day upon which that court convenes. [Harwood v. Toms, 130 Mo. 225; 16 Cyc. 912, and cases cited.]

Thus taking judicial notice, and retaining in mind the facts here shown by the record, we are constrained *482to hold that the point of defendant in error was well taken. [Kenner v. Doe Run Lead Co., 141 Mo. 248; Guy v. Mayes, 141 Mo. l. c. 443.]

Limitations. This view obviates the necessity of considering the point made by the plaintiff in error touching whether the demurrer below to the petition was well taken. In passing this point, however, we may say that upon the facts of the petition it ‍​‌‌​‌‌‌​​​​‌​​‌‌​‌‌​​​​​​‌‌‌‌‌​​​‌​​​​​​‌‌‌​‌‌‌​‌‌​‌‌‌‌​​‌‌‌​​‌​‌​‌‌‌‌​​‌‌​‌‌​​​‌‌‌​‌​‌​​‌‌‌‌​​​‍was disclosed that no payment had been made on the note in suit for thirty-two years and more, nor was any novation of promise or other fact pleaded to toll the statute. Hence, it follows that, since far more than ten years had elapsed since plaintiff or her ancestor possessed the right of action, and since no facts are alleged to take the action- out of the operation of the statute, the petition was defective and the demurrer well taken. [Burrus v. Cook, 215 Mo. 496; Bliss on Code Pleading (3 Ed.), sec. 205.]

It follows that the writ of error should be dismissed at plaintiff’s cost, and it is so ordered.

Broivn, P. J., and Walker, J., concur.