Darrah v. Steamboat Lightfoot

• Decision Date: 31 October 1851
• Citation: 15 Mo. 187
• Court: Missouri Supreme Court
• Parties: DARRAH & POMEROY v. STEAMBOAT LIGHTFOOT.

15 Mo. 187

DARRAH & POMEROY

v.STEAMBOAT LIGHTFOOT.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

The complaint in this case was filed on the 25th February, 1850, returnable to the April term of the Circuit Court, and was executed on the day it was filed. It set forth that the account accrued on account of the captain; that the boat was engaged in navigating the waters of this State, and that the subjoined account accrued within six months next preceding the commencement of the suit The account was as follows:

Use of barge Cato, 17 days, ending August 23rd 1849

$102 00

Use 3 tarpaulins from August 7th to August 22nd, 15 days

22 50

Use 6 do do November 22nd to November 23rd

6 00

Use 2 do do do 7th to November 22nd

15 00--$145 50

On this account there was credit, on 6th February, 1850, of

29 26

Leaving due and sued for

$116 24

A general and special demurrer was filed at the April term, which was overruled on the 13th of June, 1850, and time was given the defendant to answer, on or before the 1st day of the November term, 1850. No answer was then, or at any time thereafter, filed; and on the 11th of January, 1851, judgment by default was rendered for the sum claimed, with interest, i. e., for $122 03. Thirteen days after, on the 24th January, 1851, a motion was filed to set aside the judgment, which, on the 12th of March, 1851, was overruled, and an appeal taken.

No affidavit of a just defense or of merits was ever filed The demurrer was never withdrawn, nor leave asked or obtained for that purpose. These are the facts in the case.

HUDSON, for Appellant. 1. The court below committed error in rendering final judgment at the same term at which the judgment by default was taken, without first making an order directing the assessment at the same term The act of 1845, Rev. Code, p. 424, art. 3, § 42, expressly provides, that in case of judgment by default, the inquiry of damages shall be made at the next term, unless the court direct it to be made at the same term. The court below erred in assessing the damages without the interposition of a jury, for under the act above referred to, it is expressly provided, that the damages shall be assessed by a jury impanneled for that purpose. See also, case of Pratte & Cabanne v. Corl, 9 Mo. R. 163. 2. The act last named, as also the act concerning Boats and Vessels, passed in 1845, were both in force at the time of rendering said judgment, and the rules of pleading and proceedings under the steamboat law, were in existence and in no way changed by the act of 1849, entitled “An act to reform the pleadings and practice in courts of justice in Missouri.” The act of 1849, art. 30, § 4, it is insisted, expressly provides that the act concerning Boats and Vessels, and all special statutes which provide specific remedies, shall be continued in force until repealed by the Legislature. If the act concerning Boats and Vessels was not repealed by the act of 1849, then the rules of practice and proceedings under said act were still in force, and consequently, the demand being unliquidated, the court had no authority to assess the damages; a jury should have been impanneled for that purpose. 3. Under the act of 1849, above noticed, there is no provision authorizing any proceeding against a boat, by name. No service could be made on the boat under any provision of said act, which would warrant the court in rendering a judgment without proof, as no complaint against a boat could, under the law, be taken as admitted or confessed, so as to dispense with proof as to the extent of the damages.

KASSON, for Respondents.

I. The defendant stood on his demurrer. This was rightly overruled, as the allegations of the petition were sufficient in law. They complied with the statute respecting Boats and Vessels, Rev. Stat. §§ 1, 4. The Circuit Court is also supported in its opinion by the opinion of this court. Gleim v. Steamboat Belmont, 11 Mo. R. 113; Steamboat Mary Blane v. Beehler, 12 Mo. R. 477, which refers to and applies to boats and vessels, the principle established in Stine v. Austin, 9 Mo. R. 558.

II. The right to a trial by jury was waived under the provisions of the new Code of Practice: art. 15, § 1. The defendant stood upon his demurrer, which not being withdrawn (Code, art. 6, § 5) admitted all the facts set forth in the petition and properly pleaded: Stephens on Pl. 175, 255; Chitty on Pl. 662; Marshall v. Platte County, 12 Mo. R. 93-4.

III. The court, therefore, rightly gave judgment upon the pleadings as they stood. There is no pretense of merits, and yet this court is asked to give the defendant all the privileges he would have had if he had exercised all due diligence--if he had complied with all the rules, and as if he had filed an affidavit of merits. On the contrary, he neglected all the rules; nearly two months of negligence appear by the record before judgment, and without any suggestion of merits, he seeks to avail himself of a statutory forfeiture, contrary to all the equities of the case. No stronger case could well be presented for applying the maxim, that “the law assists the diligent, not the delinquent.” Wimer v. Morris, 7 Mo. R. 6; Green v. Goodloe, 7 Mo. R. 25; and also for applying the rule of the new Code, which the court below, in the discretion given to it, applied in this case, as follows: “The court may, in every stage of the action, disregard any error or defect in the...