22 Mo. 470 | Mo. | 1856
delivered the opinion of the court.
At the return term no proceedings were had, except a single entry, postponing the case to another day. At the next term, the defendants filed a motion to dismiss, because it appeared upon the petition that the suit was commenced more than two years after the expiration of the constable’s term of service, and the motion and suit were, by agreement of the parties, both postponed until the next term — the plaintiff, at the same time, taking an order for an alias writ against the constable, who had not yet been served. At the succeeding term, the motion to dismiss was overruled, and the sureties, no default having been taken against them,.immediately presented an answer setting up the same defence, and asked leave to file it, which was denied, and judgment, for want of an answer, given against them. The plaintiff then discontinued as to the constable, who had been served with-process since the last term, and the court proceeded at once to assess the plaintiff’s damages.
The judgment will be reversed because the defendants were not allowed to make their defence. In matters of discretion, and this was certainly of that character, we do not interfere, except it appear clearly to us that the court has erred in the exercise of it, to the manifest injury of the complaining party, and such, we, think, was the case here. The purposes of justice will be best subserved by allowing a party to file his answer at any time before his default has been acted upon, in all cases when he has a real defence to make, and it will not create
It is very true there was no reason or authority for substituting a motion in lieu of' a demurrer, and the defendants’ motion was clearly an improper mode of making their defence, even iff the necessary facts appeared upon the petition. The difference, however, between the two is more formal than substantial ; it was manifestly a mere slip here, in the party, as to the proper mode of presenting the defence ; it was not excepted to at'the time by the plaintiffs, but was rather acquiesced in by them, and no delay would have resulted from allowing it to have been made by answer.
We do not feel ourselves at liberty to denounce the defence as unconscionable — entitled to no indulgence — and available only to a party keeping himself strictly within the rules of law. These defendants were not endeavoring to avoid the payment of their own debt by the mere lapse of time, but were defending themselves against the heavy penalties inflicted upon them, as the constable’s sureties, for an alleged breach of his duty, by insisting upon the plaintiff’s omission to' institute their suit within the time allowed by statute, under which the plaintiffs themselves claim the penalty. When they entered into this bond, it might very well have been their understanding, if not part of
The other points in the case need not be decided; but it may not be improper to remark that the constable’s admission, made to Doniphan, was clearly inadmissible against them; this conversation was no part of the res gesfse — the collection of the inoney, which was the official act of the officer, for which the plaintiff sought to recover against his securities, but was merely a narration of that affair — certainly, good evidence against himself, as his own admission of what he had transacted, but not against others, although they were bound for him in reference to the act to which the conversation related. (Greenl. Ev. § 187.)
the judgment is reversed, and the cause remanded.