Zervis v. Unnerstall

• Decision Date: 28 February 1888
• Citation: 29 Mo.App. 474
• Parties: MARIAN ZERVIS, Defendant in Error, v. FRANK UNNERSTALL, Plaintiff in Error.
• Court: Missouri Court of Appeals

29 Mo.App. 474

MARIAN ZERVIS, Defendant in Error, v. FRANK UNNERSTALL, Plaintiff in Error.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

ERROR to the Cape Girardeau Court of Common Pleas, HON. ROBERT L WILSON, Judge.

Affirmed.

J. B DENNIS, for the plaintiff in error: The allowance of the note against Vollmers' estate was a judgment to be entered of record. Rev. Stat., sec. 192; Dullard v. Hardy, 47 Mo. 403; Kennerly v. Shepley, 15 Mo. 640; McKinney v. Davis, 6 Mo. 501. And the note as against Vollmers became merged in the judgment. Goddard v. Williamson, 72 Mo. 131; Leech v. Asher, 20 Mo.App. 656; Stewart v Vernon County, 64 Mo. 408. The petition charges that Henry Vollmers and Frank Unnerstall, under the name of Franz Unnersoll, executed and delivered the note, etc. If the unusual allegation (et praeterea nihil ) in this petition, as to this fact, is such as to require an affidavit in order to make a complete denial, still the failure to do so admits only the execution all other advantages under his plea are still open to defendant. Bates v. Hinton, 4 Mo. 78; Payne v. Snell, 4 Mo. 238; Snowden v. McDaniel, 7 Mo. 313; State v. Ferguson, 9 Mo. 288.

MAURICE CRAMER, for the defendant in error: No declarations of law having been asked or given, the presumption is, that the court, sitting as a jury correctly assumes the law and that its findings of fact are in accordance therewith. DeLaureal v. Kemper, 9 Mo.App. 77. Though the allowance of said demand against the estate of Vollmers may be a judgment, yet still it was only such as to Vollmers or his estate, and did not affect the right of the claimant to sue and obtain a judgment against the surviving obligor. Rev. Stat., sec. 659. Payment of a portion of the debt by the personal representative of one of the obligors in a promissory note, or similar obligation before the expiration of the statutory period, would prevent the operation of the statute against the co-makers, as effectually as a part payment by the deceased would, had he been living. County of Vernon v. Stewart, 64 Mo. 608; Leech v. Asher, 20 Mo.App. 656. The defendant being charged with the execution of the instrument sued upon, does not deny the execution under oath; the execution of it, therefore, stands confessed. Rev. Stat., sec. 3653.

OPINION

ROMBAUER J.

This action is based upon a promissory note charged to have been executed by one Henry Vollmers and the defendant jointly, bearing date June 14, 1868, and payable twelve months after date to defendant's order.

The petition avers the following facts: Vollmers paid interest on the note for the years 1869 and 1870, and died in 1871. The defendant was appointed his administrator shortly thereafter, and in the same year, while defendant was such administrator, the note was presented for allowance against Vollmers' estate, and allowed. In 1874, the defendant resigned as administrator and one Burrough was appointed his successor de bonis non. Burrough made three payments on the claim thus allowed, which, at their respective dates, were endorsed by him upon the note, the last of such payments being made April 12, 1877. This action was instituted July 23, 1886.

The defendant filed an unverified answer containing a general denial and the plea of the statute of limitations of ten years.

The cause was tried by the court without the intervention of a jury. No instructions were asked or given. The court rendered judgment for plaintiff. We shall notice the errors assigned in their order.

The first is, that the court erred in holding the defendant liable for the contracts of the obligors in the cause of action. The meaning of this assignment is not quite clear. The petition charges that the promise was made by the defendant under the name of Franz Unnersoll. A denial of this statement without oath admits the execution of the note as charged. The cases of Payne v. Smith, 4 Mo. 78; Snowden v....