13 Mo. 473 | Mo. | 1850
Prom the above statement, the only question for our consideration is the service of the writ in this case by the sheriff upon the plaintiff in error, defendant below. The plaintiff below, in the petition filed in this case, uses the form in some respects as adopted by our Legislature, stating “that defendant, by his promissory note hereto annexed,” &c.(a) The counsel for the plaintiff in error says this statement is required by law, and that by law the notes sued on become a part of the petition and must be copied and sent out with the writ. Ve do not thus construe this statute. Its provisions nowhere require a copy of the note sued on to be sent out as part of the petition, and no provision expressly makes the original note, the foundation of the action, a part of the petition. All that is said about it is found in the examples set forth in the thirty-first article, which may be used when applicable, and these use the words “hereto annexed.” But the statute nowhere requires the notes and bonds sued on to be annexed to the petition, nor does it require copies of the notes or bonds sued on to go out with the petition to be served on defendant. The 13th section of the 7th article of the new code of practice in courts of justice declare^, that “ if either party shall rely upon any record, deed or other writing, he shall file with his pleading an authenticated copy of such record, and the original deed or other writing if in his power. Original deeds and other writings, filed by either party, as above provided, shall remain on file for the inspection of the other party until allowed by court to be withdrawn.”
Here then, the note or bond, the foundation- of the action," and upon which the party relies, must be filed with his pleading, and remain for the inspection of the other party until withdrawn by leave of the court. But this does not require it, the note or bond, to be attached or annexed to the petition, nor a copy of such note or bond to go out with the summons or writ to be served on defendant. The defendant knows where to find this bond or note; it will be on file in the clerk’s office. He must have twenty days’ previous notice by service of the writ and petition before the plaintiff can have judgment against him at the first term of the court — ample time to go to the clerk’s office and examine the original instrument on file against him. Article 5, section 4, of the above act, requires that “ every summons shall be accompanied by a separate copy of the petition; and the service shall be either, first, by reading the petition and writ to the defendant; or secondly, by delivering to the defendant, who shall be first summoned, a copy of the petition and writ; and to such as shall be subsequently summoned, a copy of the writ, or thirdly, by leaving such copy at the usual place of abode of the defendant, with some white person of his family, above the age of fifteen years.”
The sheriff certifies, that he executed the writ in this case by “delivering a true copy of the within petition and summons to John A. Hadwin, on the 21st day of January, 1850, in Boone county, Missouri.”
The defendant helow did not pretend that he had any meritorious defense to offer in this case, if the judgment below should he opened and he permitted to plead. But he relied upon the merest technical objection. We do not see any sufficient reason to authorize our interference with the judgment below. It is therefore affirmed.
(a) A promissory note stated to be annexed to the petition or made a part of it, does not thereby become such — Dietz v. Corwin, 35 Mo. R. 376. And in determining the sufficiency of a petition the averments therein alone can be considered. No reference to exhibits can help a defective allegation — Bowlin v. McFarland, 38 Mo. R. 465. The omission to file the instrument sued on is such a defect as is not waived by a failure to answer, nor for the want of an objection — Rothwell v. Morgan, 37 Mo. R. 107. Only written instruments executed by the other party on Which the suit is based is required to Defiled — Campbell v. Wolff, 33 Mo. R. 459; Carr v. Waldron, 44 Mo. R. 393. A petition on-note, not filed nor alleged to be lost or destroyed, is defective on a demurrer — Dyer v. Murdock, 38 Mo. R. 224. See also, Curry v. Lackey, 35 Mo. R. 392; Baker v. Berry, 37 Mo. R. 306; Bowling v. McFarlan, 38 Mo. R. 465; Kerns v. South St. Louis Mutual Ins. Co., 40 Mo. R. 25.