Flanagan v. Hutchinson
| Decision Date | 31 January 1871 |
| Citation | 47 Mo. 237 |
| Parties | WILLIAM FLANAGAN, Plaintiff in Error, v. ELIJAH HUTCHINSON, Defendant in Error |
| Court | Missouri Supreme Court |
Error to First District Court.
This was a suit begun by attachment. Judgment by default was rendered against defendant. Afterward the judgment was set aside on motion of defendant, who thereupon demurred to the petition. The demurrer was sustained, and the plaintiff excepted. Then on motion of defendant the court dissolved the attachment and dismissed the cause, gave judgment for costs and charges, and ordered execution.
For statement of the case see also opinion of the court.
T. W. B. Crews, for plaintiff in error.
The judgment rendered in the Circuit Court was final. (3 Iowa, 261; 4 Iowa, 340; 16 Iowa, 530; 21 Iowa, 298.) Mere clerical misprisions should not be permitted to vary the effect of a judgment or to thwart the ends of justice. (Gibson v. Chouteau's Heirs, 45 Mo. 171.)
Lewis & Daniel, for defendant in error.
I. There is no final judgment of Circuit Court in this cause. (Robinson v. County Court of Morgan County, 32 Mo. 428; Pacific R.R. Co. v. Burger, id. 578.)
II. Defendant's demurrer should have been sustained. (Chit. Cont. 26, 29; Block v. Elliott, 1 Mo. 275; Mullanphy v. Reilly, 8 Mo. 675; Brainerd v. Capelle, 31 Mo. 428; Edgell v. Tucker, 11 Mo. 528.)
III. A promise, even in writing, to pay a debt already incurred by a third person, is not available unless it be made on a new consideration. (Chit. Cont. 53, note, and cases cited; id. 436, and note.)
This cause was appealed from the Circuit Court by the plaintiff. It is objected that the record fails to show a final judgment. The suit was dismissed on motion, and the court thereupon rendered judgment in favor of the defendant for costs, and awarded execution accordingly. The judgment, as shown by the record, was informal; it was, nevertheless, final. The case was definitely disposed of and out of court. There was nothing further for the court to do in respect to it.
In the progress of the cause a demurrer to the petition was sustained, and the plaintiff excepted and stood upon his exception. The sufficiency of the petition is, therefore, up for consideration. It shows, in brief, that the plaintiff sold a quantity of wheat to one Hesse for a given sum; that Hesse sold the same wheat, with other property, to the defendant, and that the defendant thereupon, in consideration of said sale, promised Hesse to pay his (Hesse's) debt to the plaintiff, and that the defendant in fact did pay the larger portion of said debt to the plaintiff, as he had agreed to do. This suit is brought to recover the unpaid balance.
It is objected that the petition fails to show a consideration for the defendant's promise to pay Hesse's debt to the plaintiff. The sale of the wheat by Hesse to the defendant, averred in the petition, was a good and sufficient consideration for the promise; and it was decided...
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