74 Mo. 438 | Mo. | 1881
I.
The sufficiency of the plaintiff’s statement is the only point for our determination. The statute on which this action is founded is, doubtless, a penal statute, (R. S. 1879, § 809; Barnett v. Railroad Co., 68 Mo. 56,) and the time limited for actions to be brought in such cases, is three years. 1 R. S., § 1710. Aside from any consideration of the date at which the act complained of was done, the statement is very full and complete; all the elements necessary to a recovery, except that one, are well and fully set forth. We may concede at once that the excuse offered by plaintiff for failing to bring his action sooner, does not apply to this class of actions, for section 3246 of the General Statute of Limitations expressly provides that: “The provisions of this chapter shall not ■extend to any action which is or shall be otherwise limited
II.
The cjuestion then arises, has the plaintiff, by failing-to state the time at which the alleged injury was done, and by stating an insufficient and inadmissible excuse for such failure, stated himself out of court? We are not of opinion that he has; and these are our reasons therefor: The record shows that a trial was had before the justice of the peace, and, so far as appears, the statute of limitations was-not interposed. What evidence was introduced before the magistrate, we do not know, as on appeal taken by defendant to the circuit court, the judgment was simply affirmed without a trial. It may be that any objections to tho insufficiency of the statement were supplied by the evidence adduced, and we are warranted in making such favorable presumptions where the evidence is not preserved, and where there is not an absolute failure to state facts constituting a cause of action. International Bank v. Franklin Co., 65 Mo. 105; Garth v. Caldwell, 72 Mo. 622. Resides,, even if we admit that the statement shows upon its face-that the statutory bar existed to plaintiff’s action, the proper course for the defendant to have pursued was either to have pleaded the statute, or to have filed a motion to-dismiss, or, if the cause had been tried de novo in the circuit court, to have asked an instruction covering the point,, as was done in Gerren’s case, supra. The general rule is, that a party relying on the statute as a bar, must plead it-—the'formality with which he makes his plea, or the man
Holding these views, we shall affirm the judgment.
