Doan v. Holly

• Decision Date: 31 July 1857
• Citation: 25 Mo. 357
• Parties: DOAN et al., Defendants in Error, v. HOLLY et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

25 Mo. 357

DOAN et al., Defendants in Error,

v.HOLLY et al., Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1857.

1. Where several cases of action are joined in the same petition they must be separately stated.

2. It is improper to join in the same petition a cause of action against A. and B. with one against B. alone.

Error to Andrew Circuit Court.

This was a suit on a promissory note for $5,532.03, executed by defendants, Henry T. Walker and Charles F. Holly, and also to foreclose a mortgage executed in behalf of plaintiffs--the members of the firm of Doan, King & Co., the payees of said note--by Holly, one of the makers. Plaintiffs in their petition set forth substantially the execution of the note in their favor by defendants; that Holly and wife, for the purpose of securing the note, a portion of which was admitted to be paid, mortgaged by deed, dated March 18th, 1856, certain tracts of land; that the amount of said note and interest, except the credit of $300, is yet due; and “they ask judgment for the same with the damages allowed them by law. They further ask that the equity of redemption of defendants in and to the mortgaged premises be forever foreclosed, and that said mortgaged property be sold to satisfy the amount due plaintiffs.”

The defendants were served with process more than twenty days before the April term, 1857, of the Andrew Circuit Court. On the third day of the term, no answer having been filed, judgment by default was rendered against defendants. Defendants moved the court to set aside the judgment for the following reasons: 1st, because said judgment being rendered on the third day of the term of the court at which defendants were required to appear and answer said action, and before the end of said term of court the judgment was rendered in violation of law and against the rights of the defendants; 2d, because said judgment was rendered before the expiration of the time allowed by law to the defendants to file their answer to the action of the plaintiffs; 3d, because the facts stated in the petition praying for the foreclosure of the mortgage mentioned in the petition, do not authorize the rendition of a final judgment foreclosing said mortgage until the next term of the court after a rendition of a judgment by default for the want of an answer. The court overruled this motion and rendered judgment against defendants for $5,566, and ordered that the same be levied of the mortgaged property; and further ordered that, in case the mortgaged premises were insufficient to satisfy the debt and costs, then the same should be levied of any other goods and chattels, lands and tenements belonging to the said defendants.

Loan, for plaintiffs in error.

I. The material question presented by the record in this case is involved in the construction of sections 24, 25 and 26 of article 6, of the Code of Practice. These sections authorize a judgment at the first term in suits only which are founded solely on a bond, bill or note, for the direct payment of money or property. But the petition in this case also asks for the foreclosure of the mortgage. The foreclosure of the mortgage is a matter of substance. (McNair v. Mullanphy's Executor, 8 Mo. 188.) This case seems to be analogous to the case of Custe v. Pettus, 6 Mo. 497; and the rule of construction adopted in that case will exclude this case from the operation of the 24th, 25th and 26th sections aforesaid.

A. H. Vories, for defendant in error.

I. The only...