18 Mo. 118 | Mo. | 1853
delivered tbe opinion of tbe court.
Tbe plaintiff commenced bis suit by attachment, before a justice of tbe peace, against Benjamin F. Otis and-Otis, upon a promissory note, signed by B. F. Otis & Co. Tbe writ was served on Robert Scott, as garnishee, and returned “ not served on the defendants.” Notices were published according to tbe directions of tbe statute concerning attachments, and judgment was rendered against tbe defendants by default, for $149 64 for debt and interest, and also for costs. This judgment was rendered on tbe 14th September, 1850. On tbe 17th September, 1850, tbe justice’s transcript shows, that tbe defendant appeared and moved the justice to set aside tbe judgment by default, which motion was overruled ; and thereupon an appeal was taken to tbe Circuit Court. Tbe application for this appeal and tbe affidavit for tbe same, were made by Robert Scott, who stated, that be appealed because be considered tlie applicants aggrieved by tbe judgment of tbe justice.
Tbe transcript was docketed in tbe Circuit Court, u John E. Moore vs. B. F. Otis & Co.” Tbe cause was, on motion of defendants by then* attorney, continued at tbe November term,
1. Tbe bill of exceptions in this case shows that, when it was called for trial, tbe plaintiff moved tbe court for leave to discontinue tbe action as to ■-- Otis, one of tbe defendants. This motion being opposed by defendants’ counsel, was laid over by tbe court until tbe next morning. The defendants also moved to dismiss the plaintiff’s suit. Pending these motions, tbe plaintiff introduced evidence which it was agreed should be considered by tbe court, sitting as a jury, subject to its decision upon tbe above mentioned motions. This evidence was as follows : “That tbe firm of B. E. Otis & Co.” was (at tbe time tbe note upon which this suit is brought, was made) composed of said B. E. Otis and one Robert Scott; that said Robert Scott was then, and still is, and bad been for a longtime, a resident of the state of Missouri; that B. E. Otis was a resident of Boston, .Massachusetts, and that no other person of the name of “ Otis,” except B. E. Otis, was ever a member of said firm of “B. E. Otis & Co. ;” also, that the signature to tbe note was in tbe band-writing of B. E. Otis.
Tbe court then overruled tbe plaintiff’s motion for leave to discontinue, and sustained tbe defendants’ motion, and dismissed tbe suit.
Tbe plaintiff afterwards moved to set aside tbe order and judgment dismissing the suit, and brings tbe case here by appeal.
In this case, tbe record shows that B. E. Otis appeared and moved the justice to set aside tbe judgment by default. B.
The Circuit Court erred in dismissing the action of the plaintiff. The judgment of that court is reversed, and the cause remanded,