63 Mo. App. 273 | Mo. Ct. App. | 1895
This action is based on a promissory note, purporting to be signed by the defendants, D. I., •W. F. and J. H. Huffstetter and payable in terms to the order of Marsh Saville. The petition alleges execution and delivery to plaintiff, Emily Saville, in the name of Marsh Saville” that “she was, at the time said note was executed and delivered, the owner of the same and of the debt for which the same was executed, and has ever since been and now is the legal owner and holder of the same,” etc. The answer consisted of general denial of the allegations of the petition, and specifically denying the execution of the note, but said denial was not sworn to. On plaintiff’s motion, the court entered a judgment in her favor on the pleadings. Thereupon, within four days, defen'dants filed their motion to set aside the judgment thus entered, setting out numerous reasons, and, among others, “that the court erred in rendering said judgment for want of answer; that there was an answer on file in said cause, putting
I. A decision of this appeal rests upon the question whether or not the trial court, in the first instance, erroneously entered judgment for the plaintiff simply upon the state of the pleadings, as they were at that time. The trial judge, subsequent to rendering such judgment, was of the opinion that his former action was error and hence sustained defendant’s motion for new trial.
In our opinion, the court committed error in its former action of giving judgment for plaintiff on the pleadings, and hence we approve the later order of setting such judgment aside and sustaining the motion for a hew trial. Plaintiff seeks to recover on a note alleged to be executed by the defendants and on its face payable to a third party. She alleges, in effect, that, though the instrument is made to Marsh Saville, yet she, the plaintiff, is the owner and holder thereof. The answer attempts to deny every allegation of the petition, execution, and the plaintiff’s ownership. But the statute has said (section 2386, Bevised Statutes, 1889) that, unless the defendant, charged with the execution of the note sued on, shall deny such execution by answer verified by affidavit, then “the execution of such instrument shall be adjudged confessed.” In this case the defendants failed to deny, under oath, the making of the note. Hence the execution of the note filed with the petition stood confessed. But this admitted fact did not make plaintiff’s case. She was compelled, under the pleadings, to go further and prove her alleged title to the instrument. She had so declared , in her petition, but the allegation was
Regardless, now, of the reasons that may have actuated the trial court in sustaining the motion for new trial in the case at bar, we find good ground therefor, to wit, that the court erroneously awarded judgment for plaintiff on the pleadings, when there were left issues unconfessed and undetermined. Plaintiff’s entire case was not confessed. And it is now well settled that this court will not confine its consideration in such cases to the grounds, set out in the order of the lower court, setting aside its judgment, but, independent of such action, will consider any of the reasons assigned in the motion for new trial. Lovell v. Davis, 52 Mo. App. 342.
The judgment and order of the circuit court sustaining defendants’ motion for new trial is affirmed.
