Ely v. Porter

• Decision Date: 31 October 1874
• Citation: 58 Mo. 158
• Parties: DAVID A. ELY, Respondent, v. JOHN L. PORTER, et al., Ex'rs of W. T. PORTER, dec'd, Appellants.
• Court: Missouri Supreme Court

58 Mo. 158

DAVID A. ELY, Respondent,

v.JOHN L. PORTER, et al., Ex'rs of W. T. PORTER, dec'd, Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Adair Circuit Court.

Ellison & Ellison, for Appellants.

H. F. Millan, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Adair Circuit Court to recover the amount charged to be due on five promissory notes alleged to have been executed by the defendant, William T. Porter on the 10th day of July, 1866, for the payment to the plaintiff of five hundred dollars each, and also to foreclose the equity of redemption in certain real estate which, it was charged, had been mortgaged to plaintiff by a deed of mortgage executed at the same time with the execution of the notes by the defendant, William T. Porter, and in which his wife, Albina Porter had joined and relinquished her dower to the premises therein named.

After the commencement of the suit and during its progress, the defendant, William T. Porter died, and John B. Porter, and John L. Porter his executors, were made parties to the action.

During the progress of the trial, the defendants filed an answer and two amended answers, each of which was decided bad or insufficient by the court upon demurrer, or was stricken out on motion made by the plaintiff. After these several answers were rejected or stricken out, the defendants obtained leave of the court to file a third amended answer which was accordingly filed. By this last answer the defendants simply denied the execution by their testator of the several notes and the mortgage sued on as had been charged in the petition. This answer was not verified by oath.

On the trial the plaintiff introduced witnesses, by whom he proved the execution of the notes and mortgage sued on; after which he offered to read the several notes in evidence. The defendants objected to the notes as evidence in the case on the ground that they were not such notes as were described in the petition. This objection was overruled by the court and the defendants excepted.

The plaintiff then offered to read in evidence the mortgage referred to in the petition, to the reading of which, the defendants at the time objected. The court overruled the objection and the mortgage was read in evidence. To this ruling of the court the defendants also excepted.

The defendants offered no evidence, and no instructions or declarations of law were asked or given on the part of either plaintiff or defendants.

The court found the issues for the plaintiff and rendered a judgment in his favor for the amount found to be due on the notes sued on, and also entered a judgment foreclosing the equity of redemption on the mortgaged premises and ordering the same to be sold for the payment of the judgment, etc.

The defendants then, in due time, filed their several motions for a new trial and in arrest of the judgment. These motions were severally overruled by the court, when the defendants again excepted and appealed to this court.

The first error complained of by the defendants is, that the court erred in striking out the defendant's second amended answer upon the motion of the plaintiff. It is sufficient to say in reference to this objection, that when the answer was stricken out by the court, no exception was made or saved by the defendants to the ruling of the court in that particular; but on the contrary, the defendants obtained leave of the court to file another amended answer, which was afterwards filed and a trial had thereon. By answering over, the defendants waived their right to avail themselves of any supposed error committed by the court in striking out the previous answer. This would be the case even if exceptions had been saved to the action of ...