Hallowell v. Page

• Decision Date: 31 March 1857
• Citation: 24 Mo. 590
• Court: Missouri Supreme Court
• Parties: HALLOWELL et al., Respondents, v. PAGE, Appellant.^a1

24 Mo. 590

HALLOWELL et al., Respondents,

v.PAGE, Appellant.^a1

Supreme Court of Missouri.

March Term, 1857.

1. A sheriff's return of process, regular on its face, is conclusive upon the parties to the suit; its truth can be controverted only in an action against the sheriff for a false return.

2. Should a defendant permit the time for answering to expire, it is not an unsound exercise of discrction to refuse to permit him to file an answer not showing a meritorious defense to the action.

3. To entitle the holder of a dishonored bill of exchange to the damages allowed by the statute, it must be expressed to be “for value received.”

Appeal from St. Louis Court of Common Pleas.

This was an action against D. D. Page, H. D. Bacon, T. Brown, and E. Wyman, as drawers of a bill of exchange. The bill was drawn by Page & Bacon, of St. Louis, which firm was composed of defendants, upon the Bank of America, New York, in favor of Morris L. Hallowell & Co. Process was duly served upon Bacon, Brown and Wyman. The sheriff made the following return: “I further executed this writ on the 15th day of September, 1855, by leaving a copy of the writ and petition, as furnished by the clerk, at Daniel D. Page's usual place of abode, with a white person of his family over the age of fifteen years, in St. Louis county.” Bacon, Brown and Wyman answered, putting in issue the alleged presentment, refusal and notice, also the allegation that plaintiffs were partners under the name and style of Morris L. Hallowell & Co. They also denied that plaintiffs were the legal holders and owners of the bill. Page moved the court to quash the return of the sheriff, or to require him to amend the same according to the facts, and filed an affidavit, stating therein in effect that a copy of the writ in said case was not left with any white member of his family above the age of fifteen years, as in the return of the sheriff to said writ is alleged; that such copy was not left at his usual place of abode; that at the time of the pretended service no member of his family was present in the county of St. Louis. He prayed to be permitted to establish these allegations by proof. At the hearing of this motion to quash, the court refused to permit the plaintiff to prove the truth of the matters stated in the affidavit, and overruled the motion to quash the return of the sheriff; whereupon said Page then moved the court for leave to enter his appearance, and file generally an answer in said cause within a reasonable time thereafter, no answer being then prepared. The court overruled this motion, remarking that if an answer were prepared and shown to the court, it would then decide whether it should be filed, as it must be known whether the answer was to the merits before leave could be granted. The defendants then asked leave to amend the answer already filed, by inserting therein the name of said Page, so as to make it the joint answer of all the defendants. The court overruled the motion. The court thereupon, on motion of plaintiffs, dismissed the cause as to Bacon, Brown and Wyman, and rendered judgment by default against Page.

N. D. & G. P. Strong, for appellant.

I. The court should have quashed the sheriff's return, if it was false or irregular on its face. Its truth should have been inquired into when called in question at this early stage of the case. (Butts v. Francis, 4 Conn. 424; 8 Blackf. 179; Pollard v. Rogers, 1 Bibb, 473; St. John v. Tombeckbee Bank, 3 Stew. 146; Cunningham v. Mitchell, 4 Rand. 189; Thompson v. Morris, 2 B. Mon. 35; Dobbins v. Thompson, 4 Mo. 118; Blanton v. Jamison, 3 Mo. 39.)

II. The court should have allowed the defendant leave to answer, or at least have permitted the answer on file to be amended. The defendant, Page, was not in default, strictly speaking. At the earliest moment he had filed his motion to quash the sheriff's return. The motion to quash, and proceedings thereon, was equivalent to a plea in abatement to the writ demurred to by plaintiffs, and demurrer sustained. In such a case the spirit of the practice act, if not to its letter, would require the court to permit the party, where plea was thus held bad, to answer over. (Sess. Acts, 1849, pp. 80-5; R. C. 1855, p. 1237, §§ 40, 41, 42.) The answer filed did put in issue material facts, and the court should have permitted the amendment of it so as to make it the answer of Page as well as the other defendants. (Wales v. Chamblin, 19 Mo. 500; Davis v. Christy, 8 Mo. 569.)

III. The bill or check sued on does not contain the words “for value received,” and is not such a bill as makes the drawer liable for ten per cent. damages on failure to pay. (R. C. 1845, p. 173, §7; Riggs v. City of St. Louis, 7 Mo. 438.)

Glover & Richardson, for respondents.

I. As between the parties to a suit the sheriff's return is conclusive and cannot be impeached. The court will not try on affidavits whether the return is false, even though a case of fraud is made out. (Gwinne on Sheriffs, 473, and cases cited.)

II. After the defendant allowed the time for answering to expire, he could not claim the right to answer without showing a meritorious defense. He did...