Corby v. Taylor

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDRYDEN
Citation35 Mo. 447
PartiesJOHN CORBY, ADM'R OF JEREMIAH FLAHERTY, dec'd, Appellant, v. W. J. TAYLOR, Respondent.
Decision Date28 February 1865

35 Mo. 447

JOHN CORBY, ADM'R OF JEREMIAH FLAHERTY, dec'd, Appellant,
v.
W. J. TAYLOR, Respondent.

Supreme Court of Missouri.

February Term, 1865.


Appeal from Buchanan Court of Common Pleas.

Corby, as administrator of Flaherty, commenced in the Buchanan Court of Common Pleas three suits. One suit was commenced against defendant Taylor and one Grant, founded upon an account, in which suit Grant was not served with process, nor did he ever appear to the action; a second suit was commenced against defendant Taylor, founded upon two promissory notes executed by him to Flaherty, the deceased; and a third suit against defendant Taylor, founded upon an account against him in favor of said deceased in his lifetime. The last two suits have been consolidated and tried together, and the appeal in this case is taken from the judgment recovered upon said trial. When these three suits were commenced, the defendant Taylor filed an answer to each, in each of which answers he set up by way of offset an entire account for work and labor and materials

[35 Mo. 448]

furnished to and for the said Flaherty, and in his lifetime; said account being composed of various items, amounting in all to some $2,500, and running through the years 1856 to 1858 inclusive, and the account pleaded in this case being identical the plaintiff replied to each of these answers, and pleaded the offset set up in each case in abatement of the same offset set up in the other cases, &c. The said defendant then obtained leave to file an amended answer in each case. In his amended answer he divided and cut up the account before pleaded, taking a portion of the items of the account and pleading such portion as an offset to one suit, and then taking another of the items of the entire account and pleading said items as an offset to the second suit, and then taking the other portion of the items of said account and pleading them as an offset to the third suit. The suit commenced against defendant Taylor and Grant was afterwards tried upon petition and answer, and replication thereto, and the evidence adduced; and the said defendant Taylor, upon the part of said account so pleaded as an offset in said cause, obtained judgment for the sum of $637.10; after which the plaintiff replied to the offset pleaded in the remaining two suits as aforesaid, and set up in his replication as a defence to said offsets the recovery in the first case upon that part of the account pleaded in said cause, thereby insisting that the whole account before being separated was one entire and continuous account due from and to the same parties, and that only one recovery could be had upon said account.

The last two cases, having been consolidated as before stated, were tried together, and, the facts appearing as above stated upon said trial, the plaintiff moved the court to instruct that the case was as follows:

1. Plaintiff moved the court to instruct the jury, that plaintiff is prima facie entitled to recover the...

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24 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...39 S.W. 453; St. Louis v. Senter Comm. Co., 340 Mo. 1078, 102 S.W. (2d) 103; Niederberg v. Golluber, 162 S.W. (2d) 592; Corby v. Taylor, 35 Mo. 447; Moore v. McHaney, 191 Mo. App. 686, 178 S.W. 258; Rumsey v. Ry. Co., 144 Mo. 175, 46 S.W. 144; Wiggins Ferry Co. v. Ry., 128 Mo. 224, 27 S.W. ......
  • Chamberlain v. Mo.-Ark. Coach Lines, No. 39420.
    • United States
    • Missouri Supreme Court
    • October 4, 1945
    ...was compelled to join separate and independent causes of action in the same suit. Secs. 917, 1094, R.S. 1939; Flaherty's Admr. v. Taylor, 35 Mo. 447; Danciger v. Amer. Express Co., 192 Mo. App. 106, 179 S.W. 806; Wheless v. Serrano, 121 Mo. App. 17; Ormsby v. A.B.C. Fireproof Warehouse Co.,......
  • Ormsby v. A.B.C. Fireproof Warehouse Co., No. 15715.
    • United States
    • Court of Appeal of Missouri (US)
    • July 6, 1926
    ...cause. Ruddle Horine, 34 Mo. App. 616; Union, etc., Loan Co. v. Farbstein, 148 Mo. App. 216 [127 S. W. 656]; Corby, Adm'r, v. Taylor, 35 Mo. 447; Garland v. Smith, 164 Mo. 1 (64 S. W. "A recovery of damages for a trespass or other tort will not bar an action for damages arising from a disti......
  • Atkison v. Henry
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1883
    ...33 Mo. 561; McDaniel v. Lee, 37 Mo. 204. Judgment for part of a claim will bar recovery in another suit. Corby v. [80 Mo. 672]Taylor, 35 Mo. 447. Where a party fails to make any defense that he might make, he will be barred in another case from making the same. Greenabaum v. Elliott, 60 Mo.......
  • Request a trial to view additional results
24 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...39 S.W. 453; St. Louis v. Senter Comm. Co., 340 Mo. 1078, 102 S.W. (2d) 103; Niederberg v. Golluber, 162 S.W. (2d) 592; Corby v. Taylor, 35 Mo. 447; Moore v. McHaney, 191 Mo. App. 686, 178 S.W. 258; Rumsey v. Ry. Co., 144 Mo. 175, 46 S.W. 144; Wiggins Ferry Co. v. Ry., 128 Mo. 224, 27 S.W. ......
  • Chamberlain v. Mo.-Ark. Coach Lines, No. 39420.
    • United States
    • Missouri Supreme Court
    • October 4, 1945
    ...was compelled to join separate and independent causes of action in the same suit. Secs. 917, 1094, R.S. 1939; Flaherty's Admr. v. Taylor, 35 Mo. 447; Danciger v. Amer. Express Co., 192 Mo. App. 106, 179 S.W. 806; Wheless v. Serrano, 121 Mo. App. 17; Ormsby v. A.B.C. Fireproof Warehouse Co.,......
  • Ormsby v. A.B.C. Fireproof Warehouse Co., No. 15715.
    • United States
    • Court of Appeal of Missouri (US)
    • July 6, 1926
    ...cause. Ruddle Horine, 34 Mo. App. 616; Union, etc., Loan Co. v. Farbstein, 148 Mo. App. 216 [127 S. W. 656]; Corby, Adm'r, v. Taylor, 35 Mo. 447; Garland v. Smith, 164 Mo. 1 (64 S. W. "A recovery of damages for a trespass or other tort will not bar an action for damages arising from a disti......
  • Atkison v. Henry
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1883
    ...33 Mo. 561; McDaniel v. Lee, 37 Mo. 204. Judgment for part of a claim will bar recovery in another suit. Corby v. [80 Mo. 672]Taylor, 35 Mo. 447. Where a party fails to make any defense that he might make, he will be barred in another case from making the same. Greenabaum v. Elliott, 60 Mo.......
  • Request a trial to view additional results

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