Hannibal, Ralls Cnty. & Paris Plankroad Co. v. Robinson

• Decision Date: 31 October 1858
• Citation: 27 Mo. 396
• Parties: HANNIBAL, RALLS COUNTY AND PARIS PLANKROAD COMPANY, Appellant, v. ROBINSON, Respondent.
• Court: Missouri Supreme Court

27 Mo. 396

HANNIBAL, RALLS COUNTY AND PARIS PLANKROAD COMPANY, Appellant,

v.ROBINSON, Respondent.

Supreme Court of Missouri.

October Term, 1858.

1. Under the Revised Code of 1845, a justice of the peace could set aside a non-suit only in case it was rendered on account of the absence of the plaintiff at the time appointed for trial; if a justice should render a judgment of non-suit and dismiss a cause for the alleged reason that the plaintiff had not filed with him the instrument of writing on which the suit was founded, no motion to set aside such non-suit would be necessary to entitle the plaintiff to an appeal.

2. The seventh section of the second article of the act regulating proceedings in justices' courts (R. C. 1845, p. 638) did not, in a suit to recover the balance alleged to be due on a subscription to the capital stock of a plankroad company, organized under the act of February 27, 1851 (Sess. Acts, 1851, p. 259), require the filing of the original articles of association executed by defendant and others for the purpose of organizing the company.

Appeal from Ralls Circuit Court.

Porter & Harrison, for appellant.

I. No motion to set aside the dismissal was necessary. The clause of the statute requiring the filing with the justice of any paper on which the suit is founded before any process issues is merely directory. (6 Mo. 516.) By the by-laws the original articles of association had to be kept by the secretary for the use of the members.

W. E. Cooke and Vanswearingen, for respondent.

RICHARDSON, Judge, delivered the opinion of the court.

The plaintiff filed (July 14, 1854,) an account against the defendant for the balance due on his subscription to the capital stock of the Plankroad Company. At the trial before the justice both parties appeared, and on the defendant's motion the cause was dismissed, because the plaintiff had not filed the original articles of association on which the liability of the defendant arose. The plaintiff thereupon appealed to the Circuit Court. In that court the defendant moved to dismiss the appeal because the plaintiff had not applied to the justice to set aside the non-suit, and because an appeal will not lie from a judgment of non-suit before a justice, unless a motion is first made to set it aside. The defendant also renewed the motion to dismiss the suit that had been made and sustained by the justice. Both motions were sustained. Pending these motions, the plaintiff filed the original articles of association, purporting to be signed by the defendant and many other persons, from which it appears that the instrument was executed for the purpose of organizing a corporation for the construction of a plankroad between designated points, pursuant to the provisions of an act of the general assembly, entitled: “An act to authorize the formation of associations to construct plankroads and macadamized roads,” approved 27th February, 1851. (Sess. Acts, 1851, p. 259.) This paper shows the objects of the association, the respective sums agreed to be paid by the stockholders thereto, and in all particulars seems to conform to the requirements of the second section of the act. The plaintiff also filed the bylaws of the association, which require, among other things, that the secretary shall carefully keep and preserve all books and papers belonging to the company, subject at all times to the inspection of any stockholder.

The record presents...