Franklin Bank v. International Hospital Equipment Co.

• Citation: 273 S.W. 197,217 Mo.App. 131
• Parties: FRANKLIN BANK, Respondent, v. INTERNATIONAL HOSPITAL EQUIPMENT COMPANY, J. D. DEAN and G. CARLANDER, Appellants.
• Decision Date: 02 June 1925
• Court: Missouri Court of Appeals

273 S.W. 197

217 Mo.App. 131

FRANKLIN BANK, Respondent, v. INTERNATIONAL HOSPITAL EQUIPMENT COMPANY, J. D. DEAN and G. CARLANDER, Appellants.

Court of Appeals of Missouri, St. Louis

June 2, 1925

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

AFFIRMED.

Judgment affirmed.

Hill & England for appellants.

(1) The plaintiff having pleaded the endorsements of the note in question, it was the duty of the plaintiff to prove such endorsements and to transfer to it before it would be entitled to recover. Dunlap v. Kelly, 105 Mo.App. 1; National Bank v. Pennington, 42 Mo.App. 335; World v. Roberts, 58 Mo.App. 197; Mayer v Old, 51 Mo.App. 214; Saville v. Hauffstetter, 63 Mo.App. 273; Robinson v. Powers, 63 Mo.App. 290. (2) The petition alleged that the note was given for "value received," and, having made such allegation it was incumbent upon the plaintiff to prove such averment as a part of its right to recover against defendants, and the answer filed did not in any way excuse plaintiff from making such proof. Dunlap v. Kelly, supra; Jerome v. Whittney, 7 Johns 321. (3) Under the pleadings plaintiff was required to adduce evidence on matters of fact, and the court erred in entertaining the motion for judgment on the pleadings and in sustaining the same under the issues raised by the plaintiff's petition. Dunlap v. Kelly, supra. (4) The plaintiff being the endorsee of the note in action, the answer of defendants put in issue the plaintiff's title to said note, and the plaintiff was required to make proof of each endorsement pleaded before it would be entitled to recover against defendant. Dunlap v. Kelly, supra.

Rassieur & Goodwin for respondent.

(1) A motion for judgment on the pleadings is not a demurrer and the ruling of the court in sustaining it cannot be reviewed without a motion for a new trial. Hodson v. McAnerny, 192 S.W. 423; Steinberg v. Levy, 159 Mo. 629; Leahy v. Mercantile Tr. Co., 247 S.W. 401; Coffey v. Carthage, 200 Mo. 629; Godfrey v. Godfrey, 228 Mo. 513; Railway v. Railway, 251 Mo. 717; Equitable etc. Co. v. Bank, 197 S.W. 117. (2) There was no motion for a new trial filed. The motion filed was not to set aside the action of the court in sustaining the motion and grant a new hearing thereupon, but to set aside and vacate the judgment rendered, to disregard the motion for judgment on the pleadings, and to reinstate the cause for trial on the ground that the court had no jurisdiction to hear and determine the motion for judgment on the pleadings. The offices of a motion in arrest of judgment are: (1) To prevent the entry of judgment for plaintiff; (2) To disregard the plaintiff's pleading; and (3) To discharge the defendant from liability to respond to plaintiff's petition. 34 Corpus Juris, pp. 31-32 and 44; State ex rel. Bond v. Fisher, Judge, 230 Mo. 325, Ann. Cas. 1912A 970; Gilstrap v. Felts, 50 Mo. 428; Browning v. Powers, 442 Mo. 324; Stid v. Railroad, 211 Mo. 414-415. It is not a motion for rehearing. Stid v. Railway, supra; State ex rel. Bond v. Fisher, supra. A motion in arrest is available where the court has no jurisdiction over the subject-matter. 34 C. J., p. 32, and cases cited in note 19. As the above things were asked for (1) to prevent the entry of judgment on the motion, (2) to disregard the motion and (3) to discharge defendants from liability to respond to the motion on the ground that the court had no jurisdiction over the subject-matter, to-wit, "to entertain" the motion, and no rehearing was asked for, the motion filed called "a motion to set aside judgment" was a motion in arrest. (3) The filing of the motion in arrest waived any motion for a new trial. McReynolds v. Anderson, 56 Mo.App. 398; 29 Cyc. 725. (4) The only question is whether the court had jurisdiction to hear and determine the motion for judgment on the pleadings. That the court had such jurisdiction is unquestionable. The power is inherent in the court. Smith v. St. Joseph, 45 Mo. 449; State ex rel. v. Simmons, 109 Mo. 118; Nelson v. Wallace, 48 Mo.App. 193; Emmert v. Meyer, 65 Mo. 609. (5) In whatever capacity defendant's motion be judged he is confined to the specifications of it. Polski v. City, 264 Mo. 458; Bridge v. Brewing Assn., 129 Mo. 343. This is not the claim defendant's assignments are too general (S. C. State ex rel. v. Reynolds, 278 Mo. 554), but that, no matter how general, consideration is confined to the scope of the general assignments. No new matter can now be heard. (6) There being no error in assuming jurisdiction the judgment must be affirmed. (7) There was no error in sustaining the motion for judgment on the pleadings. In absence of a denial or some motion, a demurrer or a plea of confession and avoidance, plaintiff was entitled to judgment. Secs. 1256, 1380, 1381, 1382, R. S. 1919; Granitoid Co. v. Cement Co., 169 Mo.App. 302; State ex rel. v. Henders, 86 Mo.App. 488. There was no general denial and therefore it was unnecessary to prove the validity of endorsements. Stid v. Railway, supra; State ex rel. Bond v. Fisher, supra; Dunlap v. Kelly, 105 Mo.App. 1; Meyer v. Old, 51 Mo.App. 214; World v. Roberts, 58 Mo.App. 197; Seville v. Huffstetter, 63 Mo.App. 273; Cavitt v. Tharp, 30 Mo.App. 134; Bank v. Johnson, 261 S.W. 705. There was no denial of execution. Hence that was unnecessary to prove. Sec. 1415, R. S. 1919; Hart v. Harrison Wire Co., 91 Mo. 442; Smith v. Rembaugh, 21 Mo.App. 390. There was no specific denial of endorsements, and hence it was unnecessary to prove them. Bank v. Johnson, supra; Robinson v. Powers, 63 Mo.App. 290; 8 Corpus Juris, sec. 1195, p. 910. There was no plea in confession and avoidance or any plea in the nature of a defense, neither of payment, want of consideration, release, or any other defense of that character. Therefore plaintiff was required to prove nothing. Smith v. Rembaugh, 21 Mo.App. 390. The only denial was that defendants "deny they are indebted to plaintiff as in said petition alleged." This is specific. Plaintiff did not sue for a debt, but upon a promissory note and a specific denial of indebtedness denied no allegation of the petition. Therefore the specific denial did not go to any allegation of the petition and the motion for judgment on the pleadings was properly sustained. Kinney v. Osborne, 14 Cal. 113; Spencer v. Turner, 49 P. 1012; Haggard v. Hay's Admr., 13 B. Mon. 175; Clark v. Finnell, 16 Mo. Mon. 335; Taylor v. Purcell, 31 S.W. 568; Callanan v. Williams, 32 N.W. 384; Hutchinson v. Bien, 93 N.Y.S. 217. (8) As to appellants' contentions in their assignments of error and brief. No issue of fact was raised as assigned by appellants. See Point 7, supra. As to the second assignment, that the note itself would not warrant a judgment, the note as pleaded was negotiable (secs. 788, 789 and 970, R. S. 1919); the defendants Dean and Carlander were indorsers (secs. 849 and 850, R. S. 1919); they had waived presentment and notice, which required none, all of which plaintiff pleaded (secs. 895 and 896, R. S. 1919; Jacobs v. Gibson, 77 Mo. App., 249-250); value was alleged and presumed prima facie (sec. 811, R. S. 1919); nor was it denied. Defendant did not deny execution, indorsement, transfer or plead any affirmative defense. The third assignment has been covered. There was no denial, either general or special, of th indorsements (Point 7, supra). The third assignment is based on the assumption that the title to the note was in issue. It was not (Point 7, supra). (9) Plaintiff did not have to prove value. It was not alleged, except as descriptive of the terms of the note. Sec. 2160, R. S. 1919; Sec. 811, R. S. 1919; 8 Corp. Juris, Sec. 1296, p. 990; Tapley v. Herman, 97 Mo.App. 543; Glasscock v. Glasscock, 217 Mo. 362. Further, the case cited by appellants, Jerome v. Whitney, 3 Johns. (N. Y.) 321, is supplanted and overruled by Durland v. Durland, 153 N.Y. 67, 42 N.E. 42.

DAVIS, C. Daues, P. J., Becker and Nipper, JJ., concur.

OPINION

DAVIS, C.--

This is an action on a promissory note. The defendants filed a joint answer to plaintiff's petition; the plaintiff, after filing a general denial reply, then filed a motion for judgment on the pleadings, which the court sustained, entering judgment thereon for $ 3281.96, from which defendants appealed.

Plaintiff's petition, with affidavit and Exhibit "A", reads:

"Plaintiff states that it is a corporation organized and existing under and by virtue of the laws of the State of Missouri, and as such is engaged in the business of banking in the city of St Louis, Missouri.

"That defendant, International Hospital Equipment Company, is a manufacturing and business corporation, organized and existing under and by virtue of the laws of the State of Missouri, and having its principal offices in St. Louis, Missouri.

"Further, plaintiff states that on November 2, 1922, defendant International Hospital Equipment Company, executed and delivered to Ruche-Coopersmith Bed Company, a corporation, its certain promissory note (a verified copy of which is hereto attached and made a part of this petition, marked "Exhibit A") of even date, whereby, for value received, it promised to pay to the order of Ruche-Coopersmith Bed Company, ninety days after date, at the Franklin Bank, St. Louis, Missouri, the sum of two thousand nine hundred and seventy dollars ($ 2,970), with interest from maturity at the rate of eight (8) per cent per annum, and if said note should not be paid at maturity and should be placed in the hands of an attorney for collection it further promised to pay, as attorneys' fees for collection, ten (10) per cent additional on the full amount due thereon; demand for payment, protest and notice of dishonor being waived by all parties thereto.

"Further, that prior to the delivery of...