Doan v. Holly

• Decision Date: 31 January 1858
• Citation: 26 Mo. 186
• Parties: DOAN et al., Defendants in Error, v. HOLLY & WALKER, Plaintiffs in Error.
• Court: Missouri Supreme Court

26 Mo. 186

DOAN et al., Defendants in Error,

v.HOLLY & WALKER, Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1858.

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

2. An interlocutory judgment rendered at the return term of a cause, in an action not founded on a bond, bill or note for the direct payment of money or property, can not be proceeded on to final judgment at such return term; if, however, such interlocutory judgment be rendered at a term succeeding the return term, it may be proceeded on to final judgment at the term at which it is rendered. Section 11 of article 12 of the act concerning practice (R. C. 1855, p. 1280) relates only to the disposition of causes at the return terms.^a1

3. An action to foreclose a mortgage given to secure a promissory note is not an action founded on a bond, bill or note within section 11 of article 12 of the act regulating practice in civil cases (R. C. 1855, p. 1280); consequently an interlocutory judgment by default rendered therein at the return term can not be proceeded on to final judgment at such return term; an interlocutory judgment by default, rendered at a term succeeding the return term, may be proceeded on to final judgment at the same term at which the default is taken.

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 the note--by Holly, one of the makers. At the April term, 1857, of the court--the return term--final judgment was rendered against defendants. This judgment was reversed at the July term, 1857, of the Supreme Court. (See report of case, 25 Mo. 357.) At the October term of the Andrew circuit court, the defendants having failed to answer, judgment by default was rendered against the defendants.

Loan, for plaintiff in error.

A. H. Vories, for defendants in error.

SCOTT, Judge, delivered the opinion of the court.

This case is reported in 25 Mo. 357. When here it was reversed for reasons stated in the opinion. The cause is again here with the errors in the proceedings for which there was heretofore a reversal of the judgment.

It is now made a ground for the reversal of the judgment that the action not being founded upon a bond, bill or note for the direct payment of money or property, a judgment by default could not be proceeded on to final judgment at the term during which it was taken. (Sec. 11, art. 12, R. C. 1855, p. 1280.) The judgment in this case was reversed for the reason that there was a misjoinder of action. It was both a suit on a note and a suit for the foreclosure of a mortgage, with not the same parties to both suits. A proceeding to foreclose a mortgage is not one of those actions in which the law contemplates that a judgment by default should be proceeded with to final judgment at the return term. It has been holden that where an action, which can be tried at the return term, is joined with an action which can only be tried at the second term, the trial of neither cause of action can be had at the first term. (Watson v. Walsh & Patterson, 10 Mo. 454.) When this...