O'Day v. Sanford

• Decision Date: 02 November 1909
• Citation: 138 Mo. App. 343,122 S.W. 3
• Parties: O'DAY et al. v. SANFORD et al.
• Court: Missouri Court of Appeals

122 S.W. 3

138 Mo. App. 343

O'DAY et al. v. SANFORD et al.

Springfield Court of Appeals. Missouri.

November 2, 1909.

1. PLEADING (§ 350)—JUDGMENT ON PLEADINGS —NATURE OF MOTION.

While a motion for judgment on the pleadings is in the nature of a demurrer, in that it admits all facts well pleaded, it differs therefrom, in that, if the motion is sustained, judgment goes at once for the moving party, while on demurrer the judgment is not final if the other party pleads over; but, in both cases, the motion raises only an issue of law.

2. WILLS (§ 748) — ACTION BY LEGATEE— PROMISSORY NOTE.

A legatee to whom the executors have assigned, as part of his share under the will, a negotiable note executed to testator, occupies the same position as testator would have occupied in suing thereon.

3. COURTS (§ 91)—RULE OF DECISION—DECISION OF SUPREME COURT.

The Court of Appeals is bound by a decision of the Supreme Court in a case where the question decided was in issue.

4. BILLS AND NOTES (§ 443)—RIGHT OF ACTION —ACTION BY MAKER.

That the payee of a note was also one of the makers would not prevent his maintaining an action at law thereon.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by John O'Day and another against E. L. Sanford and another. From a judgment for defendants on the pleadings, plaintiffs appeal. Reversed and remanded, with directions for trial on the merits.

W. D. Tatlow, for appellants. J. T. White, for respondents.

GRAY, J.

On August 27, 1908, the appellants filed in the circuit court of Greene county, Mo., the following petition: "Plaintiffs state that, for value received, the defendants executed and delivered to John O'Day the following note and obligation, to wit: `Springfield, Mo., Dec. 30, 1898. Three months after date we promise to pay to the order of John O'Day at Exchange Bank of Springfield, Mo., five hundred dollars, for value received, without defalcation or discount, with eight per cent. interest after due until paid. For newspaper mail. John O'Day. E. L. Sanford. H. S. Jewell.' Plaintiffs further state that on or about the __ day of August, 1901, the said John O'Day, the ancestor of the plaintiffs, departed this life testate and appointed by his last will and testament E. W. Bannister and Sue I. B. O'Day, the executors thereof, who, after his said will was duly probated in the probate court of this county, duly qualified as said executors. Plaintiffs further state that afterwards, and under the terms of said will and the orders of said court, the said note was duly assigned and transferred to these plaintiffs by said executors as a part of their distributive share of the said estate of John O'Day, deceased. Wherefore plaintiffs pray judgment against defendants on said note for $500, with interest from maturity at 8 per cent. per annum, and for cost of suit, and for such other relief as the plaintiffs may be entitled to thereon." In proper time the respondents answered, admitting the signing of the note, and alleging that the payee in said note, John O'Day, ancestor of the plaintiffs, signed said note as maker and as principal therein, and the respondents signed as sureties for him, and that O'Day retained said note in his possession until his death, and did not at any time negotiate or transfer the same to any person. The answer further alleged that no consideration was received by the respondents for signing said note. Appellants replied denying the allegations of the answer, except it was admitted that John O'Day, the payee, was also one of the signers, and expressly denied that respondents signed said note for the accommodation of O'Day, and alleged said note was signed by all the signers thereof in furtherance of a joint enterprise in which they were all interested, and that said O'Day did not receive anything from such joint enterprise, which was the purchase of a newspaper afterwards turned over to defendant Jewell, and whatever, if anything, was received from the sale of such paper, was received by the defendant Jewell. After the filing of this reply, the respondents filed a motion for judgment on the pleadings, which was sustained, and judgment entered.

A motion for judgment on the pleadings partakes of the nature of a demurrer, in that, it admits all facts that are well pleaded, but, if sustained, judgment goes at once, and in this it differs from a demurrer. If the demurrer is sustained, the order is not a final judgment. The party has...