21 Mo.App. 390 (Mo.App. 1886), George T. Smith Middlings Purifier Co. v. Rembaugh

Citation:21 Mo.App. 390
Opinion Judge:PHILIPS, P. J.
Party Name:GEORGE T. SMITH MIDDLINGS PURIFIER COMPANY, Respondent, v. B. S. REMBAUGH, Appellant.
Attorney:WILKERSON & MONTGOMERY, for the appellant. SAMPSON & SMITH, for the respondent.
Case Date:April 05, 1886
Court:Court of Appeals of Missouri
 
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Page 390

21 Mo.App. 390 (Mo.App. 1886)

GEORGE T. SMITH MIDDLINGS PURIFIER COMPANY, Respondent,

v.

B. S. REMBAUGH, Appellant.

Court of Appeals of Missouri, Kansas City.

April 5, 1886

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

The case is stated in the opinion.

WILKERSON & MONTGOMERY, for the appellant.

I. In a suit on a note the only effect of the want of an affidavit to the answer, denying all the allegations of the petition, is that plaintiff may read the note in evidence without proof of its execution. Sect. 3653, Rev. Stat. But under such answer all other defences are open to defendant, as before the statute requiring the affidavit in order to put plaintiff to the necessity of proving execution of note. Klein v. Keys, 17 Mo. 326; Bates v. Hinton, 4 Mo. 78; Carpenter v. Inhabitants Lathrop, 51 Mo. 498.

II. Under such answer defendant may prove that his signature was obtained by fraud, or that the note was void ab initio. Corby's Exec'r v. Weddle, 57 Mo. 458; Cavender v. Waddingham, 2 Mo.App. 555.

SAMPSON & SMITH, for the respondent.

I. None of the cases cited by defendant are in point, because they were all (except the one in 57 Missouri), rendered under the statute before the amendment in 1868, and as to the one in 57 Missouri, the answer was verified. Under the old statute it was simply provided that if the plea of non est factum was not sworn to, the instrument should be " received in evidence." Gen. Stat. 1835, p. 463, sect. 18; Gen. Stat. 1845, p. 819, sect. 23; Gen. Stat. 1855, p. 1267, sect. 45; Gen. Stat. 1865, p. 676, sect. 45. By the amendment of 1868, continued ever since, the execution is " adjudged confessed" unless denied by answer or replication verified by affidavit. Acts 1868, p. 86.

II. In this case the question is one of pleading, and the answer confesses the execution of the instrument; or that it is his contract; so there is no issue of fact to try. In this case the answer was a confession and no avoidance; hence there was no defence, and judgment was properly rendered on the pleadings. The holding of the circuit courts has been heretofore, as in this case.

III. The courts will construe an amendatory statute so as to accomplish the object aimed at by the amendment. In this there could be but one object--that to be such a plea it must be verified.

PHILIPS,...

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