Brown v. King

• Decision Date: 31 January 1867
• Citation: 39 Mo. 380
• Parties: JOSIAH BROWN, Defendant in Error, v. WILLIAM O. KING, Plaintiff in Error.
• Court: Missouri Supreme Court

39 Mo. 380

JOSIAH BROWN, Defendant in Error,

v.WILLIAM O. KING, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1867.

Error to Dade Circuit Court.

John S. Phelps, for plaintiff in error.

I. The interlocutory judgment was improperly and prematurely taken. Before the return term of the writ, the original petition was destroyed. Two terms of the court were thereafter held and plaintiff below took no steps in the cause. At the third term after the conmencement of the suit Brown filed an amended petition in the cause, and in five days thereafter (the court continuing in session longer) took an interlocutory judgment by default. Defendant was entitled to have until the next term to answer the action--R. C. 1855, p. 1255, § 15. Until there was a petition on file, defendant could not answer the action.

II. The court should have impaneled a jury to assess the damage--Graham's Pr. 631; 3 Chitty's Pr. 671-2, 675; 1 Tidd's Pr., 570 & 573; 1 Dane Abr. 543. As to English practice in awarding damages, Nelson v. Sheridan, 8 T. R. t. p. 222 & 395; Art. 7 of Amend. to Const of Mo., “the right of trial by jury shall remain inviolate;” 3 Jac. L. Dic., tit. Judgment, 552; 3 Pet. 446-7; Bald. C. C. 404 & 222; Pratte et al. v. Corl, 9 Mo. 162; Sutton v. Clark, 9 Mo. 555; 10 Mo. 31 & 557; 30 Mo. 600; 31 Mo. 490; 3 Black Com. 398.

III. The court should have heard evidence in investigation of damages--Sathes v. Kipp, 12 How. N. Y. Pr. 342; Webb v. Coonce, 11 Mo. 9; Gra. Prac. 643.

WAGNER, Judge, delivered the opinion of the court.

It appears from the record in this case, that the plaintiff instituted suit against the defendants and others, returnable to the October term, 1863, of the Dade Circuit Court. Prior to the holding of the October term, 1863, the courthouse in Dade county was burned, and with it the original petition in this cause. The defendant was duly served wtth process previous to the burning of the courthouse, but no further steps were taken in regard to the case till the second day of the April term, 1865, when the plaintiff's attorney filed what he termed an amended petition, without giving any notice to the defendant, and proceeded on the fifth day of the term to take judgment by default, the term continuing several days longer.

The defendant afterwards appeared in court, and moved to set aside the interlocutory judgment because it was irregularly taken, which motion was by the court overruled, and at the next term a final judgment was rendered. Upon an inquiry of damages, the defendant demanded a jury; but, the plaintiff waiving a jury, the court refused to accede to the defendant's request, and proceeded to assess the damages without the intervention of a jury.

These are the material points, though the record is made out in such an imperfect and bungling manner, and the attorneys involved and confused the case with such a multiplicity of motions, as to render it very difficult to arrive at the true merits or the precise state of the record.

The original petition was destroyed by fire, and before the plaintiff could take any further action requiring the defendant to appear and plead or answer, it was necessary that h...