Carpenter v. Meyers

• Citation: 32 Mo. 213
• Parties: GEORGE W. CARPENTER et al., Respondents, v. MORRIS D. MEYERS, Appellant.
• Decision Date: 31 March 1862
• Court: United States State Supreme Court of Missouri

32 Mo. 213

GEORGE W. CARPENTER et al., Respondents,

v.MORRIS D. MEYERS, Appellant.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Circuit Court.

M. L. Gray, for appellant.

I. Defendant not having been personally served with process, the case was not triable at the return term. (R. C. 1855, p. 1259, Prac. Act, § 4 & 5.) The general rule by the statute is that all cases shall be continued at the return term, and the 24th, 25th and 26th secs. of Art. 6, p. 1235, changes this rule only in cases where there is personal service in cases of bills, bonds and notes.

Sec. 25 of the Land Court Act of St. Louis county (R. C. 1855, p. 1595) controls this matter, making all cases in St. Louis courts, where there has been fifteen days' personal service, triable at the return term.

II. The court should have continued the cause, good grounds having been shown.

III. Defendant was entitled to a default on his counter-claim. It was new matter and a cross claim. (R. C. 1232, § 12; R. C. 1233, § 13, 15 & 16.)

Hitchcock, for respondent.

I. The Practice Act, Art. VI., § 26, R. C. 1855, p. 1235, makes all suits upon notes for the direct payment of money, triable at the term at which the defendant is bound to appear, the return term of the writ.

II. The granting a continuance was a matter within the discretion of the court, and to authorize a reversal for the refusal thereof, a plain and palpable case of error must be made out. (Freleigh v. The State, 8 Mo. 611.) The record does not show the grounds of the decision.

III. The court rightly refused to grant defendant a judgment for want of replication to his so-called counter-claim. The answer sets up merely a partial failure of consideration.

BAY, Judge, delivered the opinion of the court.

Plaintiffs brought suit against defendant on a promissory note in the St. Louis Court of Common Pleas, returnable to the October term, 1858. The note was for the sum of $217.69, dated 19th of August, 1857, and made payable to the order of plaintiffs seven months after date. The summons was served on the 16th of September, 1858, by leaving a copy of the writ and petition at the usual place of abode of defendant, with a white person of his family over the age of fifteen years.

The answer alleges that the note was given in consideration of a bill of goods, purchased in the city of New York, to be forwarded to defendant at St. Louis, and that plaintiff neglected to forward a part of said goods of the value of forty-two dollars, which amount defendant asks to be deducted from the face of the note.

The answer sets up a further defence--that after the making of said note plaintiffs assigned for the benefit of their creditors all their property, including said note, and that the assignees are the owners and holders of said note, and alone entitled to collect the same. When the cause was called for trial, defendant asked for a continuance upon the grounds that the cause was not triable at the return term; which application the court refused. A similar application was then made upon the statements of defendant's attorney, plaintiff waiving an affidavit; which was also overruled. Defendant then moved for judgment against plaintiff for the sum of forty-two dollars upon the ground that no replication had been filed to that part of his answer averring the nondelivery of a portion of the goods; which was also overruled. The record presents three propositions for the consideration of this court: 1st. Was the cause triable at the return term? 2. Was the application for a continuance, predicated upon the statement of defendant's attorney, properly overruled? 3. Does the answer set up matter requiring under our practice a replication?

The 2d and 3d propositions are readily disposed of. The statement of defendant's attorney is predicated almost exclusively upon information imparted to him by his client, and not upon facts within his own knowledge; and if the information so imparted was in all respects true, it still does not show that diligence upon the part of the defendant which would entitle him to a discontinuance. The bill of exceptions, moreover, does not set out the rule of the court in regard to continuances, and for aught that appears in the record, the application may have been overruled by reason of its noncompliance with such rule in form or substance. To warrant this court in reversing a judgment upon the ground of alleged error in overruling a motion for continuance, the record should show a state of facts which will satisfy us that the discretion lodged in the court below was unsoundly exercised.

The 3d ground of error is without any force. The matter set up in the answer, which the appellant insists should have been replied to, constitutes simply a plea of partial failure of consideration. The practice act only requires a replication when the...