State v. Delaney

• Citation: 99 S.W. 1,122 Mo. App. 239
• Parties: STATE ex rel. SCHOOL DIST. v. DELANEY et al.
• Decision Date: 03 December 1906
• Court: Court of Appeal of Missouri (US)

99 S.W. 1

122 Mo. App. 239

STATE ex rel. SCHOOL DIST. v. DELANEY et al.

Kansas City Court of Appeals. Missouri.

December 3, 1906.

Rehearing Denied January 14, 1907.

1. PLEADING—ISSUES AND PROOF—EVIDENCE ADMISSIBLE UNDER PLEADINGS.

Where defendant, instead of demurring to the petition, objects to the reception of any evidence, on the ground that the petition does not state facts sufficient to constitute a cause of action, the most liberal intendments are to be made in favor of the petition.

2. SCHOOLS AND SCHOOL DISTRICTS—OFFICERS —ACTIONS ON BONDS—PLEADING.

In an action by the state, on the relation of a school district, on the bond of the treasurer of the district, the bond was filed with the petition, and defendant objected to the reception of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action in that the name of the obligee in the bond was not the same as that of relator. Held that, in passing on the sufficiency of the petition, the bond could not be looked to.

3. SAME.

A petition was in the name of the "School District of the Town of H.," and alleged that defendant, a member of the board of directors of the district, was elected treasurer, and executed a bond which recited that the defendant was elected to the office of treasurer of "H. school board, of district No. 2, township 15, range 13, of Knox county;" that the words "district No. 2, township 15, range 13" were without any significance, and should be treated as surplusage, and that in fact defendant was elected to the office of treasurer of the H. school board in Knox county, and recovery was sought on the bond for a breach thereof. Defendant objected to the reception of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. Held, that the petition was sufficient as against such an objection, notwithstanding that defendant did not allege with more particularity that the error in name was an inadvertence or mistake.

4. REFORMATION OF INSTRUMENTS—REMEDY.

Though by mistake the obligee to a bond is not properly named, he need not first bring a separate action to reform the instrument before suing thereon, but may have reformation and recovery in the same action.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by the state, on the relation of the school district of the town of Hurdland, against William Delaney and others. From a judgment in favor of defendants, relator appeals. Reversed and remanded.

L. F. Cotty, for appellant. W. N. Doyle and Campbell & Ellison, for respondents.

ELLISON, J.

The defendant Delaney is sued as treasurer of plaintiff school district, and the other defendants are his sureties on his official bond. The action is based on the bond. At the opening of the trial an objection to the reception of any evidence in plaintiff's behalf was sustained, on the ground that the petition did not state facts sufficient to constitute a cause of action. Plaintiff appealed.

We will call attention, in the first instance, to the law that while the courts recognize the right of a defendant to make the objection just stated, yet it is a right which has been expressed to be only tolerated, and that when that practice is substituted for a demurrer the most liberal intendment is made in favor of the petitioner. Haseltine v. Smith, 154 Mo. 404, 413, 55 S. W. 633; Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024. It is said that any petition which will sustain a verdict and judgment should be ruled to state a cause of action when the objection comes as it has in this case. Young v. Shiokle, 103 Mo. 324, 15 S. W. 771; Goldsmith v. Candy Co., 85 Mo. App. 595; Marshall v. Ferguson, 78 Mo. App. 645; Dodge v. Coal & Coke Co., 115 Mo. App. 501, 91 S. W. 1007.

The specification made under the general objection is that the plaintiff is a village school district, the name of which is "School District of the Town of Hurdland," while the name of the party to which the bond was given, and of which Delaney was treasurer, was a country school district named "Hurdland School Board of District No. 2, Township 15, Range 13." The bond itself as filed with the petition is no part of it (Baker v. Berry, 37 Mo. 306), and we must look to...