Hook v. Murdoch

38 Mo. 224 | Mo. | 1866

Wagner, Judge,

delivered the opinion of the court.

This was a suit instituted ,on a promissory note by plaintiff, who claims to be public administrator of Callaway County, and in that capacity has in charge the assets belonging to the estate of Martha T. Dyer, deceased. The petition alleged that the note was executed by the defendants Murdoch & Dickson to the plaintiff’s intestate, on the 1st day of June, 1859; that Martha T. Dyer died on the 27th day of July, 1862, still possessed of the note; and as an excuse for not filing the note with the petition, there was an averment that the said note was wrongfully withheld and retained from the plaintiff by one Thomas B. Dyer.

To this petition defendants demurred, assigning for causes of demurrer, that the petition did not state facts sufficient to constitute a cause of action; that it appeared from the petition that the action was founded on a note which was not only not in the possession of plaintiff, but held adversely to him by a stranger ; that the petition disclosed a cause of action against Thomas B. Dyer, not against the defendants; that the petition and the action were founded on anote executed by defendants, but the same was not filed therewith, neither was it alleged to be lost or destroyed.

The court sustained the demurrer, and, the plaintiff refusing to amend, gave final judgment for defendants.

The statute provides that an action or defence may be maintained on any instrument of writing, notwithstanding it may be lost or destroyed ; and -in such action or defence such instrument shall not be required to be filed, but the party shall allege the loss or destruction as an excuse for the want of such filing. And when any petition, or other pleading, shall be founded upon any instrument of writing charged to have been executed by the other party, and not therein alleged to be lost or destroyed, the same shall be filed with the petition or other pleading — R! C. 1855, pp. 1240-1, §§ 59, 60. The statute contemplates and requires that the instrument which is the foundation of the action, where it is executed by the adverse party, shall be filed with the petition or other pleading, except it be lost or destroyed, and in that case an allegation of the loss or destruction must be made as an excuse for not complying with the provisions of the law. Under the former practice, if the plaintiff failed to make pro-ferí of the instrument of writing mentioned in his declaration, and which was the foundation of his action, it was a substantial defect in his declaration, and demurrable—McCormick v. Kenyon, 13 Mo. 131. There is no allegation in the petition that the'note is either lost or destroyed; indeed the petition shows that it is neither, but, in lieu of the statutory requirements, it is stated that it is held wrongfully by another party.. The note is not destroyed, and the analogy between this case and that of a lost ’note is not sufficient to maintain the action.

There is no 'evidence that the administrator has ever made any attempt to reduce the chose in action to possession, but he seeks to recover on secondary evidence, when at the same time he discloses the fact that primary evidence is attainable. That the defendants are liable is indisputable ; but to whom they are liable, they have a direct interest in knowing.

There is a controversy existing about the title to the note between the plaintiff and a stranger. This must be settled and determined before the defendants can be called on to respond. The law affords ample and adequate remedies. The administrator can proceed against Thomas B. Dyer as for a conversion, or pursue his redress under the second ar-tide of the statute concerning administrators, and obta,in am adjustment in a speedy and summary manner.

Judgment affirmed.

Judge Holmes concurs; Judge Lovelace absent.