Butts v. Phelps

• Decision Date: 31 October 1883
• Parties: BUTTS, Administrator, v. PHELPS, Appellant.
• Court: Missouri Supreme Court

79 Mo. 302

BUTTS, Administrator,

v.PHELPS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Webster Circuit Court.--Trial before F. M. MANSFIELD, ESQ., sitting as Special Judge.

REVERSED.

Charles W. Thrasher for appellant.

Smith & Krauthoff and Rush & Foster for respondent

NORTON, J.

1. JUSTICE'S COURTS: statements.

This cause was tried in the Webster county circuit court on appeal from the judgment of a justice of the peace, and plaintiff obtained judgment from which defendant has appealed to this court, and assigns among other errors the action of the court in overruling his motion in arrest based on the ground that the statement did not set forth a cause of action. The statement is as follows: “Plaintiff states that defendant is indebted to him in the sum of $50 lawful currency, for which he asks judgment.” Measuring the sufficiency of this statement by the statements adjudged to be insufficient in the cases of Brashears v. Strock, 46 Mo. 221, and Swartz v. Nicholson, 65 Mo. 508, it must be held to be bad. Measuring it by the rule laid down in the cases of Iba v. Hann. & St. Jo. R. R. Co., 45 Mo. 471, and Razor v. St. Louis, & I. M. R. R. Co., 73 Mo. 471, that statements before justices of the peace, to be sufficient, must advise the opposite party of the nature of the claim and be sufficiently specific to be a bar to another action, it must likewise be held to be bad. The statement in question does not contain an averment of a single fact, but only states a conclusion of law. The judgment will be reversed, and as, under section 3060, Revised Statutes, which is a new section and enlarges the power of the circuit court with reference to allowing amendments of such statements to be made, this statement may be amended, the cause will be remanded.

2. WITNESSES.

As the same will be remanded, we deem it proper to note the objections made to the action of the court in receiving and rejecting testimony. It appears from the record that the partnership firm of McAlpine & Butts owned a claim against one Stroud and one Sharp, residing in Arkansas, and that McAlpine, one of the firm, in the latter part of 1875, or first part of 1876, gave the claim to defendant, who is a lawyer, for collection. Mr. Butts, who was the surviving member and plaintiff in the suit, (McAlpine having died before suit,) testified on the trial as to the directions he gave defendant concerning the collection of the said claim soon after he received it of McAlpine. Defendant was also introduced as a witness and during his examination was asked to state “what instructions McAlpine gave him at the time he gave him the draft or claim, as to whom he should send it to in Arkansas?” This was objected to on the ground that McAlpine was dead. The objection was sustained, to which exception was taken. Under the ruling of this court in the case of Stanton v. Ryan, 41 Mo. 510, the objection was properly sustained. We have been cited to the case of Fulkerson v. Thornton, 68 Mo. 468, as an authority sustaining the right of defendant to testify. It is only decided in that case that when the contract sued on was made by two persons on one side, one of whom was dead, that fact did not disqualify the adverse party from testifying in the case. It is there said that “the reason of the statutory provision is the prevention of one person testifying when death has sealed the lips of his adversary; a reason which cannot possibly apply, when there are other persons still alive who were co-contractors with decedent, cognizant of all the facts as well as he was, able, therefore,...