Garth v. Motter
| Decision Date | 12 March 1913 |
| Citation | 154 S.W. 733,248 Mo. 477 |
| Parties | ALICE K. GARTH, Plaintiff in Error, v. JOSHUA MOTTER |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.
Writ of error dismissed.
Ben T Woodson for plaintiff in error.
The Statutes of Limitations cannot be taken advantage of by demurrer. Smith v. Dean, 19 Mo. 63; Angel on Limitations (2 Ed.), p. 312; Hines v. Potts, 56 Miss. 352.
Motter & Shultz for defendant in error.
(1) The writ of error should be dismissed. R.S. 1899, sec. 852; Rules Governing Practice in the Kansas City Court of Appeals, Rule 7; Biles, Edwards & Co. v. Beadle, 93 Mo.App. 628; Schnelle v. Devanney, 61 Mo.App. 453; Williams v. Beck, 63 Mo.App. 149; Kenner v. Lead Co., 141 Mo. 248. (2) The court did not err in sustaining the demurrer to plaintiff's petition. Burrus v Cook, 215 Mo. 503; Bliss on Code Pleading (3 Ed.), sec 205.
This is an action at law, for the balance, with interest, due on a promissory note, for the original sum of $ 4500, bearing interest from maturity at the rate of ten 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 $ 2635.47 on the 9th day of December, 1876; alleged that no other payments had been made thereon, and prayed judgment for the balance of $ 1864.53, together with interest at the rate of ten 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 reddi potest -- 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 in October, 1909, and thereon the circuit court of Buchanan county actually made return July 21, 1909. Attempting to comply with the requirements of section 2071, Revised Statutes 1909, plaintiff in error on the 20th day of September, 1909, served on the defendant in error the following notice:
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 on the merits, that court, deeming itself without authority to hear and determine the same, because the amount involved exceeded its jurisdiction, on the 4th day of November, 1909, ordered it certified to this court for determination, which was accordingly done, and the case is here.
There are but two points raised in the case; one of these is raised by the plaintiff in error, and the other by the defendant in error. The point of the plaintiff in error is: Did the trial court err in sustaining the demurrer to plaintiff's petition, it appearing (and for the reason) that said petition showed upon its face that the cause of action stated therein, or attempted so to be, was barred by the Statute of Limitations? The question raised by the defendant in error is: Was timely statutory notice given of the suing out of the writ of error herein; if not, should the writ be dismissed for lack of statutory notice?
We must needs look first to the last question, meeting it as we do upon the threshold.
The statute involved and relied upon is as follows:
As we have already noted in the statement of facts, the writ of error was returnable on the first Monday in October 1909. Return thereof was promptly and timely made -- in fact the return bears attest of the circuit clerk on July 21, 1909, and the filing shown to have...
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