Chitwood v. Jones
| Citation | 45 S.W.2d 893 |
| Decision Date | 04 February 1932 |
| Docket Number | No. 4983.,4983. |
| Parties | CHITWOOD v. JONES et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.
"Not to be officially published."
Action by D. J. Chitwood against Alva Jones and Fannie Jones. From a judgment in favor of defendant Alva Jones, making no disposition of the case as to defendant Fannie Jones, plaintiff appeals.
Appeal dismissed.
D. S. Mayhew, of Monett, for appellant.
Heber Finch, of Sapulpa, Okl., and S. W. Bates, of Joplin, for respondents.
The petition in this case was originally filed in Barry county, but came to the circuit court of Jasper county on a change of venue.
Plaintiff filed an amended petition on October 27, 1930, against both of the defendants and in two counts. In the first count it was charged that defendants were joint makers of a promissory note in the sum of $1,000, dated March 28, 1919, and it was further alleged that said note was renewed from time to time until the 28th day of March 1927; that on said date, the defendants, then residing in the state of Oklahoma, paid the interest on said note to said date, and made a new note for $1,000 to be signed by the said defendants, but that said Alva Jones, for the purpose of defrauding the plaintiff, obtained the original note upon a promise to secure the signature of Fannie Jones to the new note, which he failed to do. It was alleged that there was still due and unpaid on said $1,000 note the full amount thereof, together with interest from March 28, 1928.
The second count contained similar allegations as the first count, except that it is based upon a note of $800, upon which judgment is asked with interest from November 19, 1927.
A separate answer was filed by defendant Alva Jones, setting up, as to both counts, a discharge in bankruptcy of date April 2, 1928.
Defendant Fannie Jones also filed an answer denying specifically that she at any time executed any promissory note forming the basis of this action, and specifically denying that she authorized Alva Jones, or any other person, to make any statement or promise that she would sign any note forming the basis of plaintiff's action. Similar defenses were set up by the said Fannie Jones as to the second count.
Plaintiff filed a reply setting forth that, after the discharge in bankruptcy of the said Alva Jones, he saw plaintiff in person, who then admitted the debt, and renewed his obligation to pay said original notes.
Plaintiff also filed a further reply in the nature of a general denial to the allegations set up in the answer of defendant Fannie Jones.
Thereafter, on January 22, 1931, the trial court sustained a motion of defendant Alva Jones to strike from plaintiff's reply all that part thereof setting up the alleged admission and renewal of the obligation on the part of defendant Alva Jones. Thereafter the court also sustained a motion to abate the action as to the defendant Alva Jones.
The record further shows that plaintiff refused to plead further as to ...
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...respondent. (1) Only final judgments are appealable. Thurman v. Smith, 39 S.W.2d 336; Cox v. Schaab Stove Co., 58 S.W.2d 700; Chitwood v. Jones, 45 S.W.2d 893. A judgment which does not settle the rights of the parties or determine the merits of the controversy is not appealable. Boden v. J......
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