55 Mo. 29 | Mo. | 1874
delivered the opinion of the court.
Action in the Phelps Circuit Court brought by J. H. Jeffries, as subsequent indorser, against C. L. Flint, as payee and prior indorser of a promissory note, made payable to the order of said Flint by one Griffin, the maker, at the banking house of Ward & Bros., Bankers, in the City of Rochester and State of New York. At the return term of the writ, the defendant filed his answer and the cause was continued to the next term. At that term the defendant withdrew his answer and filed his demurrer to plaintiff’s petition, which was adjudged insufficient. Plaintiff thereupon filed his amended petition. On the fourth day after the amended petition was
This application was very properly overruled, as it proceeded upon the assumption that the statutory provision requiring certain instruments to be filed, was ajsplicable to the case at bar. While it is true, in one sense, that this suit has for its foundation the promissory note mentioned in the petition; yet it is equally true that § 51, p. 1022, 2 Wagn. Stat., referred to by appellant’s counsel as being in point, has not the slightest application here; as that section applies exclusively to suits founded upon any instrument of writing, charged to have been executed by the other party; i. e., the party who is sued. Consequently, the non-filing of the note with the original petition, constituted no ground whatever for granting a continuance; the application for which had its origin either in an utter misapprehension of the meaning of the statute, or else in the desire to frame some flimsy pretext, wherewith to stave off a trial. If an inspection of the note referred to in the original petition, were absolutely necessary, in order for the defendant to properly prepare for his defense, §§ 36, 37, 2 Yol. Wagn. Stat., p. 1044, point out the appropriate way, whereby the production of papers, not necessary to be filed with the pleadings, can be secured.
On the overruling of his application, the defendant excepted and thereupon filed his demurrer to the amended petition, urging the insufficiency thereof on the ground already considered, that the note, referred to therein, was not filed therewith ; that there was no averment of notice to defendant, nor that plaintiff paid any consideration for the note, &c., &c.
As the plaintiff, however, has consented to the revivor asked, and has entered here in his voluntary appearance, the action will stand revived against the aforesaid legal representative of the said decedent defendant.
Judgment affirmed.