Ennis v. Hogan

Decision Date31 March 1871
PartiesRICHARD ENNIS et al., Appellants, v. JOHN HOGAN et al., Respondents.
CourtMissouri Supreme Court

Slayback & Haeussler, for appellants.

No reply was required in this case. The answer does not confess and avoid the allegation of the petition; does not admit the claim against the defendants by the plaintiffs, and then show a demand existing in favor of the defendant against the plaintiffs; is not new matter, nor is it a counter-claim within the meaning of the statute. “The practice act only requires a reply when the answer contains new matter constituting a counter-claim.” (Carpenter v. Meyers, 32 Mo. 213; see generally Holzbauer v. Heine, 37 Mo. 443-4; Jones v. Moore, 42 Mo. 413; Gen. Stat. 1865, p. 686, § 26; Elliot v. Leak, 4 Mo. 540; Branstetter v. Rives, 34 Mo. 318; Nordmanser v. Hitchcock, 40 Mo. 178; Downing v. Still et al., 43 Mo. 309; O'Fallon v. Davis, 38 Mo. 269; Stout v. Lewis, 11 Mo. 438; Arnold v. Palmer, 23 Mo. 411.) That the assertion of having procured the satisfaction of a judgment in a certain amount is no plea of payment of that amount, this court has distinctly held in the case of Lingle et al. v. National Ins. Co., 45 Mo. 109-10.

Terry & Terry, for respondents.

CURRIER, Judge, delivered the opinion of the court.

The defendants had judgment on their answer for want of a reply, and the question here is, was the judgment warranted? In other words, did the answer contain new matter constituting an affirmative defense?

The alleged indebtedness sued for was originally contracted by a private corporation, in which each of the defendants held $3,000 of stock. It is on that ground they are sought to be held to personal liability, the corporation in the meanwhile having become insolvent and been dissolved. The defendants in their answer admit the alleged insolvency and dissolution, and their alleged relation to the corporation as stockholders, and then allege a state of facts not adverted to in the petition, in avoidance of their supposed liability, to-wit: that their stock was paid in full, and that they had in addition paid corporation debts to an amount exceeding the total amount of their stock. Here is a plain case of confession and avoidance. The defendants admit every fact alleged against them as stockholders, and then avoid liability by showing other and additional facts. They do not aver payment of the debts sued for, but the payment of other corporation liabilities whereby their liability as stockholders has been discharged. So far as this branch of the case is concerned, it makes no difference that the defendants put in issue the fact of the alleged corporation indebtedness to the plaintiff. It is not alleged that that indebtedness has been paid, and were it so alleged I fail to see that it would make any difference with the point under consideration. The case is wholly unlike Van Giesen v. Van Giesen, 10 N. Y. 316, and other like cases to which c...

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19 cases
  • Quackenboss v. Harbaugh
    • United States
    • Missouri Supreme Court
    • April 6, 1923
    ...defendant's affirmative defenses and counterclaims entitled defendant to judgment pro confesso and inquiry. R. S. 1909, sec. 1809; Eunis v. Hogan, 47 Mo. 513; Bird v. Rowell, 180 Mo.App. 421. (2) In case 92336 the amended petition is insufficient to admit evidence. (a) Lacking averments or ......
  • Roden v. Helm
    • United States
    • Missouri Supreme Court
    • December 12, 1905
    ...in the pleading, and I am not disposed to consider the question at this time." [Howell v. Reynolds County, 51 Mo. 154.] In Ennis v. Hogan, 47 Mo. 513, the answer alleged matter and evidently insisted on the failure to reply, because the circuit court gave judgment for want of a reply. In Co......
  • Roden v. Helm
    • United States
    • Missouri Supreme Court
    • October 25, 1905
    ...the pleadings, and I am not disposed to consider the question at this time.' Howell v. Reynolds County, 51 Mo., loc. cit. 156. In Ennis v. Hogan, 47 Mo. 513, the answer alleged new matter and evidently insisted on the failure to reply because the circuit court gave judgment for want of a re......
  • Williams v. Chicago, B. & Q.R. Co.
    • United States
    • Missouri Supreme Court
    • May 18, 1928
    ...to file a reply the defendant was entitled to a judgment upon the pleadings. Sec. 1236, R. S. 1919; Moore v. Sauborin, 42 Mo. 490; Ennis v. Hogan, 47 Mo. 513; Bird Powell, 180 Mo.App. 421. (5) The Probate Court of Iron County had jurisdiction to authorize the guardian of plaintiff to compou......
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