Garth v. Motter

• Decision Date: 12 March 1913
• Citation: 154 S.W. 733,248 Mo. 477
• Parties: GARTH v. MOTTER.
• Court: Missouri Supreme Court

154 S.W. 733

248 Mo. 477

GARTH v. MOTTER.

Supreme Court of Missouri, Division No. 2.

March 12, 1913.

1. EVIDENCE (§ 17) — JUDICIAL NOTICE — DATES.

Judicial notice is taken that the 11th day of October cannot fall upon the first Monday of the month.

2. EVIDENCE (§ 41) — JUDICIAL NOTICE — CONVENING OF COURTS.

The Missouri Supreme Court takes judicial notice of the day upon which the Kansas City Court of Appeals convenes.

3. APPEAL AND ERROR (§ 407) — DISMISSAL — DELAY IN SERVING NOTICE.

A writ of error will be dismissed on motion for failure of plaintiff in error to cause notice of the writ to be served, as required by Rev. St. 1909, § 2071, 20 days before the return day; service more than 20 days before the presentation and hearing of the writ being insufficient.

4. LIMITATION OF ACTIONS (§ 180) — PLEADING — DEMURRER — MATTERS ON FACE OF PLEADING.

Where the petition on a note shows that the cause of action accrued more than 10 years before suit was brought, and no facts are alleged to take the action out of the statute of limitations, the petition is demurrable.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Alice K. Garth against Joshua Motter. Judgment for defendant, and plaintiff prosecuted a writ of error to the Kansas City court of appeals, whence the cause was certified. Writ dismissed.

This is an action at law for the balance, with interest, due on a promissory note for the original sum of $4,500, bearing interest from maturity at the rate of 10 per cent. per annum. The note was dated June 11, 1875, and fell due one year after date. It was made by defendant Joshua Motter and others, whose names are not here pertinent, to the father of plaintiff, who sues as sole heir after administration had. The petition was filed on the 17th day of April, 1909, in the circuit court of Buchanan county. This petition on its face showed a payment made on the note of $2,635.47 on the 9th day of December, 1876, alleged that no other payments had been made thereon, and prayed judgment for the balance of $1,864.53, together with interest at the rate of 10 per cent. per annum from December 9, 1876. The petition disclosed no facts, and made no allegations, tolling the statute of limitations. Applying the rule expressed by the maxim — "Certum est quod certum reddipotest" — we find the amount alleged by the petition to be due at the time of filing suit to have been about $10,745. The defendant appeared in the circuit court and filed a demurrer to the petition, which, demurrer being sustained, the plaintiff refused to further plead, and final judgment was rendered against her below thereon on May 8, 1909. Thereupon, on the 20th day of July, 1909, plaintiff sued out in the Kansas City Court of Appeals a writ of error, returnable to said court on the first Monday of October, 1909, and thereon the circuit clerk of Buchanan county actually made return July 21, 1909. Attempting to comply with the requirements of section 2071, R. S. 1909, plaintiff in error on the 20th day of September, 1909, served on the defendant in error the following notice: "Alice K. Garth, Plaintiff in Error, vs. Joshua Motter, Defendant in Error. 9063. Joshua Motter, Defendant in Error, or Motter & Shultz, his attorneys of record: You are hereby notified that the writ of error from the Kansas City Court of Appeals will be presented to and heard by that court in Kansas City, Missouri, on Monday, October 11th, 1909, Served Sept. 20-1909. Ben J. Woodson, Atty. for Plaintiff in Error." On September 25, 1909, the defendant in error filed a motion in the Kansas City Court of Appeals to dismiss the writ of error herein, on the ground that no timely notice as required by law had been given. He also, by a brief filed in said court, and refiled in this court, urged a dismissal for lack of such notice. By stipulation of counsel the case was submitted on briefs in the said court of appeals. The case coming on for hearing in said court on the motion filed and on the merits, that court, deeming itself without authority to hear and determine the...