Bryan v. Miller

• Decision Date: 31 January 1859
• Citation: 28 Mo. 32
• Parties: BRYAN et al., Plaintiffs in Error, v. MILLER et al., Defendants in Error.
• Court: Missouri Supreme Court

28 Mo. 32

BRYAN et al., Plaintiffs in Error,

v.MILLER et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1859.

1. A verified statement upon which a confession of judgment is rendered must state concisely the facts out of which the indebtedness arose. If it state the execution of a promissory note to the plaintiff; that “said note was given for goods, wares and merchandise sold by the plaintiff to the defendant before the date thereof,” it will be materially defective.

2. A judgment rendered upon such a statement, though not valid as to other judgment creditors, would be valid between the parties thereto. The defective statement might be amended, but not so as to affect rights of existing judgment creditors.

Error to Clay Circuit Court.

Hovey, for plaintiff in error.

I. The court below ought to have set aside the judgment by confession, because the statement sets out no particular of the time, place, quantity, description or price of the supposed consideration of the note, and is a mere evasion of the statute under which it is made. (See Chappell v. Chappell, 2 Kerr. 215; Gilman v. Hovey et al.,--Mo. 26.)

Parsons and Edmunds, for respondents.

I. The statement on which the judgment was rendered against Murray does set out concisely the facts out of which the debt arose; the statement shows the note was given for goods, wares, &c., sold before that time to Murray. It was not necessary to state the kind, description or quality of the goods; the object of the law being to require the debtor to set out substantially the essence of the consideration only out of which the indebtedness arose. This has been done in this case. (R. C. 1855, p. 1282, § 2.)

RICHARDSON, Judge, delivered the opinion of the court.

The plaintiffs, as subsequent judgment creditors of Murray, filed their motion to set aside a judgment confessed by Murray to the defendants, on the ground that the statement was not in compliance with the statute. The statement is as follows: “The defendant Ephraim D. Murray states that he is justly indebted to the above named plaintiffs [Miller and others] the sum of sixty-eight dollars, and he asks the court here to render a judgment against him therefor in favor of said plaintiffs. He states that on the 27th day of August, 1857, he executed his promissory note to the said plaintiff for the sum of sixty-six dollars and sixty-five cents, due four months after the date thereof; that said note was given for goods, wares and merchandise sold by the plaintiffs to defendant before that date, and that no part of said note has been paid, but the whole of the principal and interest therein is still justly due and owing.”

The statute requires that a statement in writing must be made, signed by the defendant and verified by affidavit to the following effect: “First, it must state the amount for which the judgment may be rendered and authorize the entering of judgment thereon; second, if it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due or to become due.” (R. C. 1855, p. 1282, § 22.) This...