Caldwell v. White

• Decision Date: 30 April 1883
• Citation: 77 Mo. 471
• Parties: CALDWELL v. WHITE, Appellant.
• Court: Missouri Supreme Court

77 Mo. 471

CALDWELL

v.WHITE, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Shelby Circuit Court.--HON. JOHN T. REDD, Judge.

REVERSED.

Anderson & Boulware for appellant.

Jewett for respondent.

NORTON, J.

In 1857, plaintiff, Wm. D. Caldwell, executed his promissory note to Samuel B. Caldwell, his father, for $809. Payments indorsed thereon prevented the running of the statute of limitations. After the death of said Samuel B., said note came to the hands of defendant White, his executor, as assets. Said executor, White, brought suit on the note to November term, 1874, of Shelby circuit court against said Wm. D. Wm. D. filed his answer in said suit, alleging in substance that said note was executed by him for money borrowed of the testator; that the said money belonged to Nancy J. Caldwell, the wife of testator, and had come to her from her father's estate; that said testator held the same for the use and benefit of said Nancy J.; that said Nancy J., after the death of said Samuel B., had by her writing, in consideration of natural love and affection and of the sum of $200 by said Wm. D. paid to said Nancy J., relinquished said note and the indebtedness evidenced thereby to him, said Wm. D. White filed a demurrer to said answer; the ground of demurrer being that the facts stated therein were not sufficient to constitute a defense to the action. The court sustained the demurrer, and the defendant therein, Wm. D. Caldwell, declining to further plead, rendered judgment for the amount of said note and interest and for costs. The said judgment for costs said defendant thereafter paid off. Afterward said Wm. D. Caldwell, defendant in said suit, brought this suit in said circuit court of Shelby county, against said White, executor, and said Nancy J. Caldwell, as defendants. In his petition he set out the same facts set up in his answer in the prior suit against him, and further alleged that he had so pleaded them in his answer in said prior suit, and that said White, executor therein, demurred to his said answer on the ground that said facts constituted no defense to said action, and further alleged that the court sustained such demurrer, and rendered judgment in favor of said plaintiff therein; and he prayed that said executor be enjoined from the collection of said judgment and that he be decreed to enter satisfaction thereof. Said defendant, Nancy J. Caldwell, filed no answer to said petition, and set up no claim to said indebtedness or...