Comstock v. Davis
| Decision Date | 28 February 1873 |
| Citation | 51 Mo. 569 |
| Parties | JAMES F. COMSTOCK, et al., Plaintiffs in Error, v. JAMES L. DAVIS, et al., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Daviess Circuit Court.
Holliday & McFerren, for Plaintiffs in Error.
Allen H. Vories, for Defendants in Error.
This was a suit founded on the following instrument of writing:
ST. LOUIS, May 3rd, 1871.
“Thirty days after date we, the subscribers of Gallatin, County of Daviess, State of Missouri, promise to pay to the order of J. F. Comstock & Co., (a mercantile firm composed of James F. Comstock and James Blackman,) Three hundred and eighty-two 72-100 dollars for value received, negotiable and payable without defalcation or discount and with interest at the rate of ten per cent. per annum, if not paid at maturity, and attorney's fee in the event of suit for said amount or any part thereof.”
| JAMES L. DAVIS |
| “Signed |
| P. R. DUNN. |
E. M. MANN.”
An amended petition was filed by the plaintiffs containing one count setting forth in substance the above instrument, and alleging breaches of the two stipulations, to wit: the non-payment of the three hundred and eighty-two 72-100 dollars and the accrued interest, and the breach of the stipulation to pay an attorney's fee, claiming thirty eight 27-100 dollars as a reasonable attorney's fee, and asking judgment for the whole and costs.
The defendants demurred to this petition and for cause of demurrer assigned; that the petition did not state facts sufficient to constitute a cause of action; and that there were several causes of action improperly combined in the same count.
The court sustained the demurrer and ordered a non-suit, and the plaintiff afterwards by leave of the Court moved to set aside the nonsuit, which motion was overruled and exceptions saved; and the plaintiff has brought the case here by writ of error.
The court evidently erred in ordering a non-suit on sustaining the demurrer. After a demurrer is sustained if the plaintiff declines to amend his petition, a final judgment ought to be entered on the demurrer. The plaintiff may either stand on the demurrer or amend his petition, but can not be forced to take a non-suit because a demurrer has been sustained.
Treating this however as a formal defect, we will proceed to consider the case as though judgment had been entered on the demurrer.
The objection is, that two separate and distinct causes of action are improperly joined in one count. It seems to me...
To continue reading
Request your trial
-
Diener v. Star-Chronicle Publishing Company
...petition from the files. But one petition had been adjudged insufficient upon demurrer. R. S. 1899, secs. 596, 601, 621-623; Comstock v. Davis, 51 Mo. 569; v. Railroad, 93 Mo. 13; Barton v. Martin, 54 Mo.App. 134; Antonelli v. Basile, 93 Mo.App. 141. (2) Where words complained of as libelou......
-
Moffett v. Commerce Trust Co.
...Gas Co., 182 Cal. 616, 189 P. 1073; Webb v. Bidwell, 15 Minn. 479; Dept. of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277; Comstock v. Davis, 51 Mo. 569; Thompson v. Farmers Exchange Bank, 333 Mo. 437, S.W.2d 803; Tucker v. Diocese of W. Mo., 264 S.W. 897; Beardslee v. Morgner, 73 Mo. 22; S......
-
Martin v. Ray County Coal Company
...go hence without day and recover of the plaintiffs its costs herein expended." Secs. 1803, 1824, 1825, 1826, R. S. 1909; Comstock v. Davis, 51 Mo. 569; Wells Moore, 49 Mo. 229; Bennett v. Bank, 61 Mo.App. 297; Gordon v. Burris, 125 Mo. 39. (2) The judgment in this case is a final judgment. ......
-
Green v. Cole
...for many years to be the unquestioned law of Missouri. It was stated in Brooks v. Ancell (1872), 51 Mo. 178, followed in Comstock v. Davis (1873), 51 Mo. 569, and again laid down with great clearness in Moore Mountcastle (1880), 72 Mo. 605. It is also approved by one of the earliest comment......