Burdsal v. Davies

• Decision Date: 31 October 1874
• Citation: 58 Mo. 138
• Parties: JAMES S. BURDSAL, Defendant in Error, v. EVAN L. DAVIES, Plaintiff in Error.
• Court: Missouri Supreme Court

58 Mo. 138

JAMES S. BURDSAL, Defendant in Error,

v.EVAN L. DAVIES, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Jefferson Circuit Court.

Ahlrers, for Plaintiff in Error, cited in argument: Rothwell vs. Morgan, 37 Mo., 107.

J. J. Williams, for Defendant in Error.

I. The objection that the original note was not filed with the petition instead of the copy, was waived by failure on the part of defendant to demur. (Wagn. Stat., 1014-15, §§ 6, 10; Id., § 19, p. 1036; Richardson vs. Farmer, 31 Mo., 35.)

II. A petition, however defective, will be cured by verdict after issue is joined and a trial had on the merits, unless it wholly fails to state a cause of action. (Welch vs. Bryan, 28 Mo., 30; Frazier vs. Roberts, 32 Mo., 457; Richardson vs. Farmer, 31 Mo., 35.)

The filing of a note sued on is not material, although the statute requires it to be done, except in certain cases. (Dyer's adm'r vs. Murdock, 38 Mo., 224.)

SHERWOOD, Judge, delivered the opinion of the court.

The point in this case to which our attention has been specially called is this:

Whether in a suit on a promissory note, a defendant having pleaded to the merits, can, after verdict against him and judgment accordingly, successfully move in arrest, because the note sued on is not filed with the petition, nor does the petition allege the filing, or any statutory excuse for failure in this particular. And the discussion of this point necessarily involves the discussion of another, namely: Whether the petition lacking these allegations states a cause of action. For, unless the petition does this, even the healing powers of a verdict under the liberal provisions and intendments of our statute of jeofails, could not remedy the evil, as this lack in a petition is held fatal, and advantage may be taken of it at any stage of the proceedings, and to the same extent as though the court had no jurisdiction over the subject matter of the action. (2 Wagn. Stat., § 10, 1015.)

Although the forms of pleading usually adopted in this State, allege the fact of filing the instrument sued on, yet this is a mere gratuitous averment, altogether dehors the statute, as will be seen by 2 Wagn. Stat., 1022, § 51; which, while requiring the instrument to be filed, requires no mention of this to be made; and it is only when the requirements of that section as to filing have not been complied with, that a reason therefor must be given.

It will be universally conceded, that a pleading can only be held faulty on account of matter apparent upon its face; and since this is so, it must be evident, that a petition, otherwise sufficient, is not objectionable on the score that it does not state facts sufficient to constitute a cause of action, even though it be silent as to the plaintiff's compliance with some extraneous statutory requirement. In a suit on a promissory note, the statement of a cause of action is complete...