Payne v. Collier

| Mo. | May 15, 1840

Opinion of the Court delivered by

M'&irk Judge.

The above cases are alike m every particular, except in the last case Collier and Pettus were joint plaintiffs, and in the first case Collier alone was the plaintiff. One opinion will dispose of both cases.

Collier brought his action under the petition and summons statute. The statute gives a defendant the three first days of the term to appear and file his plea. Before the ■ three days expired, the defendant, Payne, appeared and made a motion to quash the plaintiffs writ for the following reasons, to wit: 1st. The writ does not require the defendant to answer any action known to the law. 2nd. Same in substance as the first. 3rd. The same. 4th. The writ is not such as the law contemplates. 5th. The writ is informal, &c.

This motion was filed but no farther notice was taken of it till after the two days for pleading had expired. When ihe time for pleading had expired the plaintiff took judgment by default for want of a plea, without taking any notice of the motion, after the judgment by default was rendered, the defendants motion to quash came on to be heard and was over ruled.

It is assigned for error, that the court gave judgment by default against the defendant while he was by law in court and wlffle his motion to quash was pending. As to this mat- . . . ; . , ter oí error, my opinion is, that the judgment by default, at rnost>was onty an irregularity. That a mere irregularity is not the subject of error, has been often declared by this court, particularly it has been so decided in the case of Holmes and Elliott vs. Carr et al.

It has been assigned for error that the writ was not quashed on the defendants motion. I will not now enquire into the question what would have been the effect of quashing this writ, after judgment by default, inasmuch as I am of opinion that the defect here complained of, was a proper case for a demurrer to the writ, or petition, rather than a motion to quash. The writ requires the defendant to ap.pear before the judge of the circuit court, at the next term, to be holden &c., to answer the plaintiffs demand, instead of saying to answer his, the plaintiffs, complaint, as the statute says. Demand and com] lain! are, for all useful purposes, about of the same import. The words used, instead of those given by the statute, could not in any way injure pr mislead the defendant; and as he was not deceived, misled nor injured, my opinion is, the court did right in refusing to quash the writ on that account.

anee with the ||“g ^ (R.c. 1835,V rigmaf-writ0*' requires the pe-Jbefore" “judge. court,” &c., demand #c-; instead of' to BPP0ar before the “circuit ceurt” §e., to answer the “complaint”

The writ requires the party to appear before the judge ,of the circuit court, at the next term, to be holden at St. Louis on a certain day. It is supposed a .command to pear before the judge of the circuit court.in term time, at the place, and at the time of holding court, is no command to appear at the court. I do not so understand it. .In this case there was no possible chance for the defendant to be deceived or misled about the matter. He has not been deprived of any legal advantage, and therefore his writ ought not to have been quashed. My opinion then is that there Is no error in the record. The judgments in both cases are affirmed.