5 Mo. 82 | Mo. | 1837
delivered the opinion of the court.
Collier commenced his action by petition in debt, under the act of the 14th March, 1835, against Whitéand Cross, stating that he was the legal owner of a bill obligatory, made by the defendants to James P. Fulkerson, and assigned by Fulkerson to him.
The defendants pleaded non est factum, without an affidavit, and that Fulkerson did not assign; and issues being joined, a verdict was found on each issue for the plaintiff, and judgment was accordingly entered up. The defendants moved for anew trial, for reasons filed; and their motion being overruled, they prosecute their appeal to reverse the judgment of the circuit court.
The reasons assigned for a new trial are: 1. That the defendants were taken by surprise. 2. That the defendant, White, had a claim against Fulkerson, the assignor of Collier, which he could have established had he known the cause would have been tried at the return term of
By the third section of the act, under which this suit was commenced, it is provided, that the petition, together with the instrument' sued on, and the assignments, shall filed in the clerk’s office, and a writ of summons or capias may be sued out, &c. This court never yet has decided what would be the consequence of a failure to instrument of writing sued on at the same time with the petition. It might, perhaps, be decided to be cause either for dismissing the plaintiffs’ action or fora continuance. Here there has been no action of the circuit court on the matter. Had the defendants moved the circuit court, either to dismiss the cause or continue ^’*ts decision on the matter would have furnished a point which this court could have decided. But the defendants by pleading to the action, waive all objections to lime °f filing the instrument of writing sued on, and claim a new trial, because of surprise. But suppose the failure to file the bill sued on were good cause for new tried, no evidence of the time of filing it is preserved on the recórd, and such being the case, this court must presume that the circuit court saw that it was filed in time.
There is then no other reason left for a new trial than the defendant’s alleged ignorance of the law. If he was ignorant °f the law, he must abide the consequences of such ignorance. The law has been published long enough for him to be informed of it. Ignorance of the law is no