Ryors v. Prior, 31 Mo. App. 555

Ryors v. Prior

31 Mo. App. 555 | Mo. Ct. App. | 1888

Hall, J.

This was an action by plaintiff on account, for services rendered by him as an attorney.

Several objections are urged by defendant, who is the appellant here, which we cannot consider, for the reason that the defendant as respects them did not save his exceptions. The defendant urges that the petition is fatally defective for two reasons : (1) Because the petition fails to specify the term of the court at which the action was brought; (2) because the petition fails to allege that the account sued on was due at the time of the institution of the action.

*561The first objection is based upon section 3511, Revised Statutes, which provides that the petition shall contain: “First, the title of the cause specifying the term,- and the name of the court and the county in which the action is brought, and the names of the parties to the action, plaintiffs and defendants.” Under our practice act all objections to the petition, excepting only the jurisdiction of the court over the subject-matter of the action, and excepting the objection that the petition does not state facts sufficient to constitute a cause of action,” are deemed waived unless they be made by demurrer or answer. Rev. Stat., sec. 3519. All objections to mere formal defects in the petition are waived by pleading to the merits, and are cured by verdict. Grove v. City, 75 Mo. 675. The first objection is to a formal defect. The requirement of the statute that the petition specify the term of the court, is a requirement as to form merely, and in no wise goes to the cause of action or the jurisdiction of the court. The fact that the requirement is made by statute is of no force. The question is, is the requirement one of form only; if it is, it matters not how it is made, by statute or otherwise. Being formal, it is waived unless the objection based on it is made as required by section 3519, Revised Statutes. The objection here was made after answer to the merits, and must be deemed waived.

The second objection is also untenable. This is an action on account for the value of services rendered by plaintiff as an attorney. The petition sets out the services rendered, states their value, and charges that the defendant had refused to pay them. Compensation for the services rendered, on the face of the petition, appears to have been due when demanded ; and demand was made, because as alleged the defendant had refused to pay. Besides in this case suit was a demand. Rev. Stat., sec. 1018. The jury returned a verdict in these words :

*562“We, tlie jurors, find for the plaintiff one thousand dollars. Gr. W. Pointer, Forman.”

The point is made by defendant’s counsel that the verdict is not sufficient under our statute to support a judgment. By section 3629, Revised Statutes, it is provided : “In every issue for the recovery of money only, or specific real or personal property, the jury shall render a general verdict.” By section 3634, Revised Statutes, it is provided: “ When a verdict shall be found for the plaintiff in an action for the recovery of money only, the jury shall also assess the amount of the recovery ; so also, if they find for the defendant in case of offsets or other demand for money.” It was necessary for the jury to return in their verdict, not only a general finding in favor of plaintiff, but also the amount of the recovery in his favor assessed by them. The amount of the recovery was an issue in the case, and the jury had to return a finding thereon in their verdict. Coates' Adm'r v. Nickell, 42 Mo. 170; Burghart v. Brown, 60 Mo. 24; Poulson v. Collier, 18 Mo. App. 604. The verdict in this case was informal, but was in our opinion sufficient. It contained a general finding in favor of the plaintiff followed with the amount of such finding. This with sufficient clearness designated the amount named as the amount of the recovery assessed by them in plaintiff’s favor. Rembaugh v. Phipps, 75 Mo. 422. In this case, which was an action for conversion, the verdict was: “We, the jury, find a judgment for the plaintiff for the sum of ninety dollars.” Of this verdict the court said: “The verdict is informal, but it clearly enough appears that it is a verdict in favor of plaintiff for ninety dollars damages.” As to the suggestions made by the defendant’s counsel against the sufficiency of the verdict on account of its . recital “We, the jurors” instead of “We, the jury,” and of the mis-spelling of the word “Foreman” we deem it sufficient to say that such clerical inaccuracies cannot be permitted to destroy the verdict of a jury. After the verdict vías read and the jury polled, the clerk *563made the following indorsements upon the back of the verdict: “Ryors vs. Prior”—“The Yerdict.” The indorsement made by the clerk under these circumstances was sufficient to identify the verdict as the one returned in this case.

Judgment affirmed.

All concur.